Stewart Dunn v Glass Systems (UK) Ltd (2007)
Particulars of claim of a barrister seeking payment of fees and damages against a client were struck out where the particulars were excessively lengthy, contained details that were irrelevant to the cause of action, contained a large number of terms that were simply incomprehensible and contained material that was subject to privilege.
The applicant company (G) applied to strike out the particulars of claim of the respondent barrister (D). D had been instructed by G on a public access basis to draft particulars of claim in proposed proceedings against a company. After D had finalised draft particulars of claim, D had received no further express instructions to carry out any further work. However, D had spent time in preparing documents that sought to justify the time taken to prepare the particulars. D then claimed against G for non-payment of fees and damages, alleging that G had failed to honour a fee agreement and cash flow agreement in respect of legal services. D claimed that G had agreed to pay him fees at a specified rate per month until the conclusion of the litigation. The claim for damages was in respect of costs incurred in preparing pre-action correspondence and particulars of claim in the instant proceedings, and in defending the instant application. The particulars of claim were 221 pages in length. G submitted that the particulars of claim should be struck out because (1) they were prolix, unintelligible and oppressive, and they contained material that was by its very nature privileged; (2) they disclosed no reasonable grounds for bringing the claim or D had no real prospect of succeeding on the claim.
(1) It was possible to plead D's claim in comparatively few pages and the sheer length of the pleading made it oppressive, McPhilemy v Times Newspapers Ltd (Re-Amendment: Justification) (1999) 3 All ER 775, Mahon v Rahn (No2) (2000) 1 WLR 2150 and Barnes v Handf Acceptances Ltd (2004) EWHC 1095 (Ch) applied, and O'Neill v Clarke (2005) EWHC 178 (QB) considered. If a full defence was to be filed it would take many days to respond. Any trial based on that document would be unmanageable and excessively long. The particulars contained a mass of details that were irrelevant to the cause of action. It was not appropriate for the particulars to attempt to deal with points that D assumed would be in the defence. D should have waited for the defence. The particulars also contained a large amount of evidence and a large number of terms that were simply incomprehensible. Further, the particulars contained material subject to privilege, but there had been no waiver of privilege by G. The problems with the particulars were so serious that they had to be struck out as a whole. (2) D's claim based on continuing cash flow obligation was hopeless and was struck out. Whilst D had agreed to represent G in its claim, there was nothing in that document compelling G to proceed with the litigation or from preventing G from disinstructing D and instructing any other barrister. There was nothing that required G to pay a monthly figure irrespective of whether any work had been carried out. Further, D could not sidestep the rules regarding costs by claiming that the costs incurred were damages for non-payment of his fees. It followed that the claim for damages in lieu of costs was misconceived and should be struck out.