David Alan Kyte v McLaren Automotive Limited & Anor [2026] EWHC 1126 (TCC)

[2026] EWHC 1126 (TCC)

Case No HT-2024-000131

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

TECHNOLOGY AND CONSTRUCTION COURT

Venue Royal Courts of Justice,, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 19/05/2026

Before

MR JUSTICE EYRE

Between

David Alan KyteClaimant

McLaren Automotive LimitedDefendants

Stratstone Sports Cars LimitedDefendant

Geraint Webb KC and Noel Dilworth (instructed by Clyde & Co LLP) for Claimant

George Mallet (instructed by Ashurst LLP) for First Defendant

Elizabeth Boon (instructed by Keoghs LLP) for Second Defendant

Hearing Hearing date: 11 th February 2026

Approved Judgment

This judgment was handed down remotely at 10.00am on 19 th May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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[1]The Claimant was the owner of a McLaren sports car (“the Vehicle”). He had bought the Vehicle from the Second Defendant for £1.029m in May 2015. Following an accident in June 2015 the Claimant engaged the First Defendant to rebuild the Vehicle (“the Rebuild Contract”). Thereafter, the Second Defendant undertook various repair, service, and maintenance works on the Vehicle (“the Stratstone Contracts”). The Vehicle caught fire when the Claimant was driving it on 20th October 2017 (“the Fire”) and was a total loss.

[2]In April 2024 the Claimant commenced proceedings against the Defendants alleging that the Fire was caused by breach of contract and/or negligence on the part of the First and/or Second Defendant. The Claimant sought damages saying that at the time of the Fire the Vehicle was worth £2.1m.

[3]The matter is before me on the Defendants’ applications to strike out the Claim pursuant to CPR rule 3.4(2).

[4]Mr Mallet for the First Defendant and Miss Boon for the Second Defendant put their cases in substantially the same way. They said that the Particulars of Claim failed to set out the essential facts needed to constitute a cause of action against either Defendant and that they were insufficiently clear to enable either defendant to know the case it had to meet. They did not accept that the circumstances of this case meant that there was to be a departure from the normal requirements for the adequate particularisation of claims. Mr Mallet and Miss Boon also pointed to the time since the Fire and the number of expert examinations which there had been as demonstrating that it should not be assumed that further or more precise information as to the cause of the Fire would come to light if the proceedings were to continue.

[5]For the Claimant Mr Webb KC contended that the Claimant’s case as to the cause of the Fire and as to the relevant breach of contract or negligence was adequately pleaded. He advanced two principal points in that regard. Mr Webb said that a particular approach was taken in cases where property has been destroyed by a fire which has destroyed the evidence which could show the precise cause of the fire. In such cases the court will, he submitted, be prepared to infer that the fire was caused by the pleaded acts of negligence and will require less particularisation of the mechanism of causation than would otherwise be the case. In addition, Mr Webb submitted that where a claimant alleges the breach of a contractual term imposing a strict liability then the court will adopt the approach to the extent of particularisation required which is taken to the pleading of a claim based on no-fault liability under the Consumer Protection Act 1987. Underlying Mr Webb’s submissions was an emphasis on what he contended was a substantial asymmetry of information as between the Claimant and the Defendants and on the need to have regard to the Defendants’ regulatory obligations. It was his position that the court could be confident that further information would come to light in the course of disclosure which would have, at the least, the potential to substantiate the Claimant’s allegations.

[6]It follows that there are three headline issues to be addressed. The first is the approach to be taken to the adequacy of the particularisation of a claimant’s case in circumstances such as those here. That turns in part on the questions of whether there is a special approach to the adequacy of pleadings in cases where property has been destroyed by fire and of the extent to which the approach applicable to particularisation in product liability cases applies in the current circumstances. The second is the adequacy of the pleading of the Claimant’s case in light of the conclusion reached on the first issue. Finally, if the Particulars of Claim are otherwise apt to be struck out, it will be necessary to consider whether the Claimant should be given an opportunity to remedy any deficiencies in the pleadings.

[7]It is important to note at the outset that the claim is in respect of the Defendant’s alleged obligations under particular contracts: the Rebuild Contract and the Stratstone Contracts. The Claimant had bought the Vehicle from the Second Defendant but this is not a claim based on obligations arising from that contract of sale. A number of the points advanced on behalf of the Claimant might have had force if his claim had been for breaches of that contract but their force or otherwise is to be assessed in light of the rather different basis of these proceedings.

[8]The factual background is not contentious. It is common ground that the Claimant bought the Vehicle in May 2015 and that the First Defendant undertook the Rebuild Works in the period to December 2015. It is also common ground that the Second Defendant undertook repair, maintenance, and service works on sundry dates in 2016 and 2017, the last of which was 3rd April 2017. The Fire was on 20th October 2017: 22 months after the First Defendant had last returned the Vehicle to the Claimant and 6½ months after the last work performed by the Second Defendant. Each Defendant takes issue to some extent with the Claimant’s case as to the terms of the contracts and as to the works undertaken but as will be seen those are not the principal issues before me.

[9]The Vehicle was examined by experts acting for the Claimant in December 2017 when an employee of the First Defendant provided assistance. There was a further inspection by the Claimant’s new expert in October 2020 when representatives of the Second Defendant also attended. There was a further inspection by the experts for all parties in January 2023. That inspection continued over three days with the First Defendant’s technicians also being present.

[10]The proceedings were begun on 8th April 2024. On 23rd May 2024 Waksman J stayed the proceedings until 22nd October 2024 “to enable the parties to complete further investigations into the cause of this incident” and to complete the protocol process. At [3] and [4] Waksman J’s order provided that: “3. During the period of the stay the parties will endeavour to:3.1 arrange for the further joint forensic examinations to take place as soon as reasonably practicable but in any event by the end of July 2024 at the latest;

3.2 exchange any further Pre-Action Protocol correspondence as appropriate arising out of those investigations to confirm their positions and to seek to narrow the issues where possible by 20 September 2024; and

3.3 convene and attend a Pre-Action Protocol meeting at the earliest opportunity thereafter. 4. The period of service of any Particulars of Claim will be suspended during the period of the stay and will expire on 8 February 2025.” 3.1 arrange for the further joint forensic examinations to take place as soon as reasonably practicable but in any event by the end of July 2024 at the latest; 3.2 exchange any further Pre-Action Protocol correspondence as appropriate arising out of those investigations to confirm their positions and to seek to narrow the issues where possible by 20 September 2024; and 3.3 convene and attend a Pre-Action Protocol meeting at the earliest opportunity thereafter.

[11]There was a further expert examination following that order. In June 2024 the experts for all parties engaged in a joint interrogation of the electronic control units with the assistance of the First Defendant’s technicians.

[12]The Particulars of Claim were served on 6th February 2025. It is to be noted that neither Mr Webb nor Mr Dilworth who appeared with him before me were involved in the drafting of that pleading.

[13]The Defences were served in May 2025. Each Defendant contended that the Claimant had failed properly to particularise his case on causation and on breach of contract and negligence. Those contentions foreshadowed the strike out applications. The Second Defendant applied on 15th August 2025 seeking an order pursuant to CPR r3.4(2).

The Pleadings

(a) The Pleadings

[14]The Particulars of Claim began by setting out the Claimant’s ownership of the Vehicle and his status as a consumer. The businesses of the Defendants were then identified and the Claimant next said that the Supply of Goods and Services Act 1982 and the Consumer Rights Act 2015 were applicable.

[15]At [5] – [10] the Particulars of Claim contained a description of the Vehicle including the following averment at [9]:

“The Vehicle contained a number of highly flammable fluids/components including: - (i) Engine oil; (ii) Steering/suspension fluid; (iii) Petrol; (iv) Coolant; and (v) Combustible components.” (i) Engine oil; (ii) Steering/suspension fluid; (iii) Petrol; (iv) Coolant; and (v) Combustible components.”

[16]The circumstances of the June 2015 incident were then set out and the Rebuild Contract and the works performed thereunder were defined at [13] thus: “Pursuant to a contract between Mr Kyte and McLaren, the Vehicle was fully rebuilt by McLaren on the P1 production line at the McLaren Production Centre, Woking (‘the rebuild contract’). This was a full rebuild, resulting in an effectively ‘new’ vehicle by the end of the process (‘the rebuild works’).

[17]At [15] the Particulars of Claim asserted that there were the following implied terms in the Rebuild Contract:

“The following were implied terms in the rebuild contract, implied by statute, by reason of obviousness and/or to give business efficacy to the rebuild contract: - (i) the rebuild works would be carried out with reasonable care and skill. See s.13 Supply of Goods and Services Act 1982 and s.49 Consumer Rights Act 2015); (ii) McLaren would use parts of satisfactory quality and/or reasonably fit for their purpose; (iii) all parts would be fitted correctly; (iv) the Vehicle would be safe when returned to Mr Kyte; (v) the Vehicle could be driven after the rebuild works without catching fire.” (i) the rebuild works would be carried out with reasonable care and skill. See s.13 Supply of Goods and Services Act 1982 and s.49 Consumer Rights Act 2015); (ii) McLaren would use parts of satisfactory quality and/or reasonably fit for their purpose; (iii) all parts would be fitted correctly; (iv) the Vehicle would be safe when returned to Mr Kyte; (v) the Vehicle could be driven after the rebuild works without catching fire.”

[18]At [16] and [17] the Particulars of Claim said this in relation to the Stratstone Contracts:

“16. The Vehicle underwent various investigation, diagnostic, repair, service and maintenance works by Stratstone at McLaren Ascot (‘the works’), pursuant to a series of separate contracts between Mr Kyte and Stratstone (‘the Stratstone contracts’). 17. The following were implied terms in the Stratstone contracts, implied by statute, by reason of obviousness and/or to give business efficacy to the Stratstone contracts: - (i) The works would be carried out with reasonable care and skill. See s.13 Supply of Goods and Services Act 1982 and s.49 Consumer Rights Act 2015); (ii) McLaren would use parts of satisfactory quality and/or reasonably fit for their purpose; (iii) all parts would be fitted correctly; (iv) the Vehicle would be safe when returned to Mr Kyte; (v) the Vehicle could be driven after the rebuild works without catching fire.” (i) The works would be carried out with reasonable care and skill. See s.13 Supply of Goods and Services Act 1982 and s.49 Consumer Rights Act 2015); (ii) McLaren would use parts of satisfactory quality and/or reasonably fit for their purpose; (iii) all parts would be fitted correctly; (iv) the Vehicle would be safe when returned to Mr Kyte; (v) the Vehicle could be driven after the rebuild works without catching fire.”

[19]The Rebuild Works were pleaded as having been completed by 4th December 2015 when the Vehicle was returned to the Claimant. At [19] and [20] the Claimant said that “various investigations, diagnostics and repairs to the Vehicle” were undertaken on particular dates in 2016 and 2017 and that the Second Defendant had serviced the Vehicle on various dates “including on or about 30 March 2017 – 3 April 2017”.

[20]The circumstances of the fire were then set out and under the heading “Causation” the Particulars of Claim said:

“26. The Fire was initially caused by a leak of flammable fluid from the Vehicle and/or ignition of combustible components in the vicinity of the left side exhaust system and/or turbocharger. 27. Each of the flammable fluids and combustible components in the Vehicle (see paragraph 9 above) may have been the cause of the Fire. 28. Mr Kyte’s primary case is that of all the flammable fluids and combustible components in the Vehicle (which may have been the cause of the Fire), the mostly likely cause of the Fire was a coolant leak and the ignition of glycol and/or glycol vapour by the very hot exhaust system and/or turbocharger. 29. Mr Kyte’s alternative case is that the Fire was caused by leak(s) and ignition of one or more of the other flammable fluids in paragraph 9 above (and/or the combustible components in the vicinity of the left side exhaust system and/or turbocharger) by the very hot exhaust system and/or turbocharger.”

[21]The pleading of the Defendants’ alleged breaches of contract and/or negligence was at [31] in these terms:

“The said Fire and resulting loss and damage was caused by the breach of contract and/or negligence of McLaren and/or Stratstone. PARTICULARS Breach of contract – McLaren (i) The rebuild works were not carried out with reasonable care and skill; (ii) McLaren did not use parts of satisfactory quality and/or reasonably fit for their purpose; (iii) The parts were not fitted correctly; (iv) The Vehicle was not safe after the rebuild works; and/or (v) The Vehicle could not be driven after the rebuild works, without catching fire. Negligence – McLaren (i) Mr Kyte relies upon the particular breach of contract as particulars of negligence against McLaren. (ii) Causing, permitting and/or allowing faults into the fluid system(s) of the Vehicle during the 2015 rebuild of the Vehicle. (iii) Failing to tighten adequately or at all connection(s) within the fluid system(s); (iv) failed to inspect, diagnose and/or test adequately or at all, the fluid system(s) to ensure that flammable liquid did not escape into the engine compartment; (v) configured and / or bent the hoses circulating flammable liquid around the Vehicle too tightly causing them to come under circumferential strain when under pressure and subsequently fray facilitating a leak of fluid; (vi) failing to devise, implement or maintain or otherwise ensure any or any reasonable system of inspection, diagnosing or testing of the Vehicle before returning it to Mr Kyte. Breach of contract – Stratstone (i) The works were not carried out with reasonable care and skill; (ii) Stratstone did not use parts of satisfactory quality and/or reasonably fit for their purpose; (iii) The parts were not fitted correctly; (iv) The Vehicle was not safe after the works; and/or (v) The Vehicle could not be driven after the works, without catching fire. Negligence – Stratstone (vi) Mr Kyte relies upon the particulars of breach of contract as particulars of negligence against Stratstone; (vii) failing properly to investigate the defects in the Vehicle; (viii) failing properly to diagnose the defects in the Vehicle; (ix) failing properly to repair the defects in the Vehicle; (x) failing properly to service and/or maintain the Vehicle; (xi) damaging the Vehicle including its fluid system(s) during the course of the works; (xii) failing to devise, implement, maintain or otherwise ensure any or any reasonable system of inspection, checking or testing of the Vehicle before returning it to Mr Kyte.”

PARTICULARS Breach of contract – McLaren Negligence – McLaren Breach of contract – Stratstone

Negligence – Stratstone

[22]Then, at [32], the Claimant invoked the maxim of res ipsa loquitur saying:

“(i) Mr Kyte relies on the doctrine of res ipsa loquitur against McLaren and/or Stratstone; (ii) Mr Kyte will rely upon the Fire as itself evidence of negligence on the part of McLaren and/or Stratstone; (iii) The only inference that can be drawn from the circumstances of the Fire is that McLaren and/or Stratstone were negligent.”

[23]Each Defendant takes issue with the details of the Claimant’s case as to the terms of the contracts and of the works done. Each says that the Claimant’s case is not adequately particularised as to causation, breach of contract, and negligence; and neither accepts that the maxim of res ipsa loquitur is applicable in the circumstances of this case.

[24]CPR r3.4(2) provides that:

“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings; (c) that there has been a failure to comply with a rule, practice direction or court order; or (d) that, in the case of a claimant’s statement of case— (i) the claim is strategic litigation against public participation, being a SLAPP claim within the meaning of section 195 of the Economic Crime and Corporate Transparency Act 2023; and (ii) the claimant has failed to show that it is more likely than not the claim would succeed at trial.” (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings; (c) that there has been a failure to comply with a rule, practice direction or court order; or (d) that, in the case of a claimant’s statement of case— (i) the claim is strategic litigation against public participation, being a SLAPP claim within the meaning of section 195 of the Economic Crime and Corporate Transparency Act 2023; and (ii) the claimant has failed to show that it is more likely than not the claim would succeed at trial.”

[25]Rule 16.4(1)(a) stipulates that the Particulars of Claim “must include (a) a concise statement of the facts on which the claimant relies”. The Generally Applicable Principles.

[26]The generally applicable principles are well-established. Cockerill J, as she then was, explained the purposes which a pleading is to serve thus at [145] – [148] in King v Stiefel

[2021] EWHC 1045 (Comm)

: “[145] A pleading in these courts serves three purposes. The first is the best known – it enables the other side to know the case it has to meet. That purpose, and the second, are both expressly referenced in the following citation from the speech of Lord Neuberger MR in Al Rawi v Security Service

[2010] EWCA Civ 482

;

[2010] 4 All ER 559

, [18]: ‘a civil claim should be conducted on the basis that a party is entitled to know, normally through a statement of case, the essentials of its opponent’s case in advance, so that the trial can be fairly conducted, and, in particular, the parties can properly prepare their respective evidence and arguments at trial.’ [146] The second purpose then is to ensure that the parties can properly prepare for trial – and that unnecessary costs are not expended and court time required chasing points which are not in issue or which lead nowhere. That of course ties in with the Overriding Objective, which counts among its many limbs ‘(d) ensuring that [the case] is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases…’. [147] This is a point which feeds into the dictum of Teare J in Towler v Wills

[2010] EWHC 1209 (Comm)

, at [18]-[21]: ‘The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him. It is necessary that the other party understands the case which is being brought against him so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent he will not, or may not, be able to do any of those things. Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party’s pleaded case is a concise and clear statement of the facts on which he relies.’ [148] The third purpose for the pleading rules is less well known but no less important. The process of pleading a case operates (or should operate) as a critical audit for the claimant and its legal team that is has a complete cause of action or defence.” ‘a civil claim should be conducted on the basis that a party is entitled to know, normally through a statement of case, the essentials of its opponent’s case in advance, so that the trial can be fairly conducted, and, in particular, the parties can properly prepare their respective evidence and arguments at trial.’ ‘The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him. It is necessary that the other party understands the case which is being brought against him so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent he will not, or may not, be able to do any of those things. Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party’s pleaded case is a concise and clear statement of the facts on which he relies.’

[27]At [149] and following Cockerill J explained that a “fairly minimalist approach” should normally be taken. She did so when considered a pleading which was diffuse and unfocused and which amounted to a “rambling narrative”. It is important to note that the minimalist approach nonetheless requires that the Particulars of Claim “should generally aim to set out the essential facts which go to make up each essential element of the cause of action”. That level of particularisation is necessary and it is at the stage of considering “whether any more than that is either necessary or appropriate” that thought is required.

[28]Akenhead J put the requirement in similarly short terms in Charter UK Ltd v Nationwide Building Society

[2009] EWHC 1002 (TCC)

saying at [15 (1–3)]:

“1. Claim forms and particulars of claim must identify the nature of the claim and the remedies sought. 2. Particulars of claim must contain the basic facts on which the claimant relies to support its claim or claims. 3. The remedies sought must relate to the claim or claims made and the basic facts pleaded by the claimant.”

[29]Coulson J, as he then was, addressed the requirements of CPR r16.4(1)(a) in Pantelli Associates Ltd v Corporate City Developments No 2 Ltd

[2010] EWHC 3189 (TCC)

at [11] saying:

“CPR 16.4.(1)(a) requires that a particulars of claim must include ‘a concise statement of the facts on which the Claimant relies’. Thus, where the particulars of claim contain an allegation of breach of contract and/or negligence, it must be pleaded in such a way as to allow the Defendant to know the case that it has to meet. The pleading needs to set out clearly what it is that the Defendant failed to do that it should have done, and/or what the Defendant did that it should not have done, what would have happened but for those acts or omissions, and the loss that eventuated. Those are ‘the facts’ relied on in support of the allegation, and are required in order that proper witness statements (and if necessary an expert’s report) can be obtained by both sides which addresses the specific allegations made.”

[30]At [12] and [13] he explained the harmful consequences which flowed from an inadequate pleading thus:

“[12] It is plain that, on any view, the amendments contained in para 16 of the Amended Defence and Counterclaim do not begin to meet the test in r 16.4(1)(a). It is impossible for anyone to work out from those generalised and generic allegations what particular matters were being alleged against Pantelli. It would be impossible for a solicitor to take a witness statement from those involved in providing the services in question that could hope to meet these points, because no details have been provided for a prospective witness to accept or dispute. Accordingly, para 16 is not a proper pleading of a case of professional negligence. [13] Similarly, para 36 is not a proper pleading of causation and loss. It is impossible to work out from that terse summary what facts CCD rely on in support of their contention that a particular breach or breaches has given rise to a particular head of loss. There is no answer to the question: but for the negligence, what would have happened and why? The damages claimed are wholly unparticularised.

(a) ”

[31]Consideration of those potential harmful consequences assists in the task of assessing whether a particular pleading meets the requirements of CPR r16.4(1)(a) and sufficiently identifies the facts on which the claim is based. A principal purpose of the pleading is to enable the other side to take instructions and to prepare evidence to meet the claim being advanced. Whether a pleading under challenge is in practice sufficient to enable that to be done will be a potent indication as to its adequacy.

[32]In Pantelli the challenged pleading had been created by listing the obligations under the relevant contract; adding the words “failing to” before them; and then saying that the loss and damage had been suffered “as a result of” those breaches. Coulson J made it clear that this was wholly insufficient. It was, instead, necessary to set out both the way in which the defendant had failed to comply with its obligations and how that failure had caused loss and damage. I will consider below the Defendants’ contention that the Claimant’s pleading in this case replicates the approach which Coulson J found to be insufficient in Pantelli.

[33]At [16] and [17] Coulson J set out the requirements for the proper pleading of an allegation of professional negligence and for such allegations to be based on expert evidence. Subject to the Claimant’s arguments as to a different approach being adopted in cases of destruction by fire or where there is an asymmetry of information the same approach applies here. The Claimant’s case here is that the Defendants failed in performing works which were matters of specialist expertise. The pleaded case needs to give a sufficient explanation of why there is said to have been a failure of such expertise.

[34]The principles to be applied when the court is considering whether to strike out a pleading were summarized by Kerr J in Standard Life Assurance Ltd v Gleeds UK

[2020] EWHC 3419 (TCC)

at [96] thus:

“Drawing those threads together, I summarise the principles applicable to this challenge to the pleaded case in the following propositions: (1) The overarching proposition is that the court must deal with the case justly, which includes dealing with it at proportionate cost. (2) A pleading must set out the facts relied on concisely, in a manner that tells the defendant the case it has to meet. (3) The pleading must not be vague, incoherent, vexatious or obviously ill-founded. (4) Where professional negligence is alleged, the claim must normally be supported by expert opinion, though not necessarily in the form of an expert’s report served with the particulars of claim. (5) The claim must not be advanced on a basis that it seeks to gain improper advantage, for example to avoid a limitation defence accruing at a time when the claimant does not know what its case is. (6) Poor drafting and untidy pleading are to be deprecated but are not, in themselves, enough to condemn a pleading if it is sound otherwise than in point of style and presentation. (7) Summary judgment is reserved for cases where the claim or part of it is doomed to failure, applying ordinary principles. It may not be suitable if the law is developing and is not suitable if a trial of the facts is required. (8) A claimant may plead primary facts and invite inferences of negligence or causation of loss to be drawn from proof of them. A court considering whether to draw the inferences will consider any rebuttal evidence. (9) If, but only if, the court could not reasonably draw the inferences necessary for liability even without such rebuttal evidence, the case is likely to be suitable for summary disposal by striking out or summary judgment. (10) Extrapolation from sampling is one method of persuading a court to draw the inferences necessary for liability and is a permissible method of establishing liability or causation of damage. (11) However, to the extent that the samples are unrepresentative of the claim as a whole, liability or causation of loss on an extrapolated basis will not follow; and in any case, rebuttal evidence may defeat the inferences invited. (12) A ‘global’ claim attributing a party’s losses to another’s breach of duty without strict attribution of individual items to specific causes, is permissible in principle, subject to proof and particular evidential issues.” (1) The overarching proposition is that the court must deal with the case justly, which includes dealing with it at proportionate cost. (2) A pleading must set out the facts relied on concisely, in a manner that tells the defendant the case it has to meet. (3) The pleading must not be vague, incoherent, vexatious or obviously ill-founded. (4) Where professional negligence is alleged, the claim must normally be supported by expert opinion, though not necessarily in the form of an expert’s report served with the particulars of claim. (5) The claim must not be advanced on a basis that it seeks to gain improper advantage, for example to avoid a limitation defence accruing at a time when the claimant does not know what its case is. (6) Poor drafting and untidy pleading are to be deprecated but are not, in themselves, enough to condemn a pleading if it is sound otherwise than in point of style and presentation. (7) Summary judgment is reserved for cases where the claim or part of it is doomed to failure, applying ordinary principles. It may not be suitable if the law is developing and is not suitable if a trial of the facts is required. (8) A claimant may plead primary facts and invite inferences of negligence or causation of loss to be drawn from proof of them. A court considering whether to draw the inferences will consider any rebuttal evidence. (9) If, but only if, the court could not reasonably draw the inferences necessary for liability even without such rebuttal evidence, the case is likely to be suitable for summary disposal by striking out or summary judgment. (10) Extrapolation from sampling is one method of persuading a court to draw the inferences necessary for liability and is a permissible method of establishing liability or causation of damage. (11) However, to the extent that the samples are unrepresentative of the claim as a whole, liability or causation of loss on an extrapolated basis will not follow; and in any case, rebuttal evidence may defeat the inferences invited. (12) A ‘global’ claim attributing a party’s losses to another’s breach of duty without strict attribution of individual items to specific causes, is permissible in principle, subject to proof and particular evidential issues.”

[35]Principles 1, 2, 3, 4, 5, and 8 are of particular relevance in the current circumstances. I respectfully agree with Kerr J’s summary of the approach to be taken and the following sets out my understanding of and expansion of particular aspects of relevance to the current applications.

[36]The assessment of the adequacy of a pleading is to be a realistic one. As I explained in Rose v Creativityetc Ltd

[2019] EWHC 1043 (Ch)

at [50] when considering whether the requirement that a proposed amendment be sufficient to enable the other side to understand the case being advanced:

“The test is comprehensibility and not elegance. The drafting of almost any pleading could be improved with hindsight and the task for the judge in assessing whether this precondition has been satisfied is not to assess the stylistic qualities of the draft but to see if it sets out the amending party’s case in such a way that the other party knows the allegations it has to meet.”

[37]Similarly, Akenhead J pointed out in Charter UK Ltd at [7] that “infelicities in pleadings will not usually justify striking out” and Kerr J made the same point in Standard Life Assurance at [96(2)] which I have quoted above.

[38]The court is to be on guard against “Micawberism”. Subject again to the Claimant’s argument that a different approach applies in cases of fire damage or where there is an asymmetry of information, it is not sufficient for a claimant to say that a deficient pleading should be kept alive in the hope that something will turn up which will enable its deficiencies to be remedied: see, amongst many enunciations of this principle, Nomura International plc v Granada Group Ltd

[2007] EWHC 642 (Comm)

, [2008] Bus LR 1 at [37]. In that case Cooke J was addressing the striking out as an abuse of process of a claim which had been commenced at a time when the claimant was unable properly to set out the nature of its claim and was, instead, seeking to stop time running against a potential future claim. In explaining that this was an abuse Cooke J said that at the time of commencing proceedings a claimant had to be able “properly to identify the essence of the tort or breach of contract complained of, and if given appropriate time to marshal what it knew, to formulate particulars of claim.” It is not sufficient for a claimant to say that information coming after disclosure will enable it to provide a properly particularised pleading. It is of note that Cooke J indicated that it was sufficient for the basis of the claim to be set out “in a rudimentary way”. This chimes with the “fairly minimalist approach” identified by Cockerill J. It demonstrates both the comparatively low hurdle which has to be surmounted for a pleading to be sufficient and the importance of those minimum essential elements being present.

[39]Again the court’s approach must be realistic. If a claim is adequately pleaded in the sense of setting out sufficiently the essential minimum requirements the court can take account of the prospect that a claimant will in due course be able to flesh it out more fully. Similarly, a pleading can be adequate if it sets out matters from which the court can properly draw inferences as to the fact of breach and/or loss (see the approach taken by Jefford J in Advanced Control Systems Inc v Efacec Engenharia e Sistemas SA

[2021] EWHC 573 (TCC)

at [19]). Although the court must be realistic, the scope for indulgence in this regard is limited and a pleading which does not set out the necessary minimum requirements falls to be struck out (so in Advanced Control Systems Jefford J found that the Defence provided sufficient basis for inferences to be drawn but that the Counterclaim did “not even start to set out a case from which the appropriate inferences could be drawn”).

[40]In this regard I do not accept the submission made by Mr Webb that it is appropriate, when considering a strike out application, to have regard to the prospect of the picture changing after disclosure and to the prospect of a claimant being properly able to articulate its claim at that stage.

[41]In support of that proposition Mr Webb referred me to the judgment of in Lungowe v Vedanta Resources plc

[2019] UKSC 20

[2020] AC 1045

at [44] and [45] where Lord Briggs said:

“[44] I make no apology for having suggested during argument that it is blindingly obvious that the proof of that particular pudding would depend heavily upon the contents of documents internal to each of the defendant companies, and upon correspondence and other documents passing between them, currently unavailable to the claimants, but in due course disclosable. [45] This poses a familiar dilemma for judges dealing with applications for summary judgment. On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue: see Tesco Stores Ltd v Mastercard Inc [2015] EWHC 1145, per Asplin J at para 73.”

[42]I do not accept Mr Webb’s contention. Instead the correct position is that it is not open to a claimant to advance a claim which does not identify the necessary elements of that claim doing so with a view to triggering disclosure of material which will enable it to identify those elements. It is to be noted that Lord Briggs was speaking in the context of an application for summary judgment and not for striking out. It is also significant that Lord Briggs was addressing the prospect of a fuller investigation of the facts adding to or altering the “evidence” relevant to an “issue”. That is a process which necessarily comes after the assessment of whether a pleading is liable to be struck out under CPR r3.4(2). That is because it is properly particularised pleadings which define the issues. Unless and until there are such pleadings it is not possible to identify the issues. Accordingly, consideration of a strike out application requires the court to consider whether a claim sufficient to give rise to an issue has been advanced. Different considerations apply to that exercise from those which are relevant to a summary judgment application.

[43]To the extent that the dilemma identified by Lord Briggs arises on consideration of a strike out application it does so in a markedly less acute form than in the consideration of a summary judgment application. In part that is because of the comparatively minimal requirements of an adequate pleading. It is also important to remember that disclosure is to be limited to the issues between the parties and the issues are those which appear from the pleadings. Particularisation of the essential elements of a claim must come before disclosure. Such particularisation is the trigger for disclosure and controls the scope of the disclosure. The refinement or expansion of an adequately pleaded claim after disclosure is a wholly different matter from using the fruits of disclosure to plug the gaps in a deficient claim. Moreover, the desirability of a minimalist approach to pleading means that it will only be comparatively rarely that the fruits of disclosure will justify the modification of a properly pleaded claim. Disclosure may often provide evidence for or substantiation of the elements of a claim but the obtaining of such evidence or substantiation will not, or at least not often, require an adequate pleading to be amended.

[44]Similarly, I do not accept that the approach set out in Hughes v Richards

[2004] EWCA Civ 266

assists here. Mr Webb referred me to Peter Gibson LJ’s judgment at [22] where the judge said that a claim was not apt to be struck out unless the court was certain that it would fail. However, the court was in that case concerned with very different circumstances from those here. In Hughes there was no question of any lack of clarity or inadequacy in the particularisation of the pleading of the claim. The issue there was whether the facts alleged amounted in law to a cause of action. Here there is no question that a breach of contract or negligence on the part of a defendant which caused the Fire would give rise to an actionable claim. The issue is whether the Claimant has adequately identified such a breach or negligence and the judgments in Hughes do not assist in addressing that issue.

[45]Where the dividing line falls between a sufficiently particularised claim and one which is liable to be struck out will be fact and case specific. It is necessary to take into account both the terms of the particular pleading and the circumstances of the case being advanced. The Pleading of Causation.

[46]I was referred to various passages in the decision of the Court of Appeal in Ide v ATB Sales Ltd

[2008] EWCA Civ 424

, [2008] PIQR P251 dealing with the approach to be taken by a judge when determining issues of causation. However, those were concerned with how issues of causation should be determined at trial rather than with what is necessary for an adequate pleading of causation where a claimant puts forward alternative causes of the relevant damage. The position in that regard can be stated shortly. A claimant must plead its case on causation with sufficient particularity to enable the court and the other parties to understand what the case is. A claimant is entitled to say that the relevant event must have been due to one of two or more causes and that whichever of those in fact caused the event gives rise to liability. However, if it seeks to proceed on that basis such a claimant must adequately identify the relevant fault or faults on the part of the defendant and explain how each of those causes flowed from such fault. The Extent to which the Approach taken to Claims under the Consumer Protection Act 1987 is Applicable Here.

[47]Mr Webb submitted that the effect of the decision of Joanna Smith J in Dana UK Axle Ltd v Freudenberg FST Gmbh

[2021] EWHC 1751 (TCC)

was that the approach which the Court of Appeal had said in Ide was applicable to claims under the Consumer Protection Act 1987 was also to be applied to contractual claims alleging a breach of a warranty of satisfactory quality. He further said that as a consequence it was not necessary for the Claimant to prove the way in which the Defendants’ failings had caused the coolant leak. If that did not have to be proved the means of causation did not have to be pleaded. For the following reasons I do not accept that line of reasoning.

[48]The relevant claim in Ide was brought under the 1987 Act alleging that a defect in the handlebars of a mountain bike had caused an accident in which the claimant suffered injury. Thomas LJ, as he then was, with whom the other members of the court agreed, explained at [7] that it was sufficient to establish liability in such a case for the claimant to show that the bike was defective and that the defect had caused the accident. It was not necessary to show how the defect was caused.

[49]In Dana at [237] Joanna Smith J said:

“In this regard, Mr Webb drew my attention to the conjoined appeal in Ide v ATB Sales Ltd and Lexus Financial Services T/A Toyota Financial Services UK Plc v Russell [2008] PIQR P251. These cases, brought under the Consumer Protection Act 1987 (‘the CPA’), concerned the burden of proof and mechanisms of causation in relation, respectively, to an accident involving a bicycle and a fire at a garage. Mr Webb submitted, and I accept, that the reasoning of the Court in dealing with a form of quasi strict liability under the CPA is equally applicable to breach of contract cases, including claims under the statutory terms implied by the Sale of Goods Act, which impose strict liability with no requirement to prove negligence.”

[50]The context in which the judge said that is significant. There was no issue in that case as to the adequacy of the pleadings. The judge’s comments were made in a judgment after an eight-day trial. The defendant had provided the claimant with seals which had failed prematurely. One issue was whether the seals were of satisfactory quality and/or fit for purpose. It is of note that the claimant had identified a particular failing in the defendant’s manufacturing process to which it attributed the inadequacy and subsequent failure of the seals (see at [14]).

[51]At [160] Joanna Smith J set out her conclusion that the breach of warranty had been established. She noted that the defendant’s principal line of argument had been in relation to causation rather than breach with the defendant contending that the claimant had not proved that the defects in the seals had caused the relevant oil leaks. It was against that background that the judge went on to consider whether that had been proved. The passage at [237] relied on by Mr Webb was in the part of the judgment where the judge was addressing the proof of causation having found the breach of warranty established. The relevant part of the judgment ended with the judge saying, at [243], that she had concluded that “the evidence is more than sufficient to satisfy me that it is more likely than not that the defects in the Seals caused the oil leakage”. The judge reverted to the effect of Ide at [245] saying:

“I should add that, contrary to the submissions made by Mr Wygas, it is not necessary for Dana to prove the precise mechanism of the premature failure (see Ide v ATB Sales Ltd [2008] EWCA Civ 424), merely that the evidence is supportive of the conclusion that, on the balance of probabilities, the Seals leaked prematurely by reason of FST’s breaches of contract, which resulted in Seals being manufactured which were not of satisfactory quality or fit for the purpose of preventing oil from leaking from the differential. I have accepted Dana’s case that, on balance, a significant proportion of Seals were not of the requisite durability (within the meaning of section 14(2B) of the Sale of Goods Act 1979). There is no expert evidence from FST to suggest any other possible cause.”

[52]That passage is again to be read in context. It was an explanation that when it had been established that the seals were not of satisfactory quality because they leaked prematurely it was not necessary for the claimant to go further and show the particular failing in the defendant’s manufacturing process which had caused that premature leaking.

[53]It follows that neither at [237] nor at [245] was Joanna Smith J purporting to set out a general rule as to the necessary elements for the pleading of an allegation that there was a breach of warranty causing loss. The judgment has no effect on the requirement that the Claimant here has to set out the respects in which the parts used by the Defendants were not of satisfactory quality and/or fit for purpose and to set out the respects in which he says the Vehicle was not safe and so forth. Nor does it affect the requirement that he plead and show the way in which any such defect caused the Fire. What the decision in Dana does indicate is that if the Claimant succeeds in showing that the parts were unsatisfactory or that the Vehicle was unsafe it will not be necessary for him to prove the mechanism which caused the parts to be unsatisfactory, the Vehicle to be unsafe, and so forth. However, the fact that he does not have to prove or plead how the parts came to be unsatisfactory does not mean that he does not have to prove and plead the ways in which they were unsatisfactory. Whether a different Approach should be adopted in Cases of Damage by Fire or where there is an Asymmetry of Information.

[54]As Mr Webb rightly said it is a potential consequence of damage caused by fire that the fire will have destroyed the very material which would have shown how the fire was caused. He submitted that this has been regarded by the courts as justifying a departure from the strict requirements of proof and pleading and to permit the pleading of alternative hypotheses. Mr Webb coupled this submission with the argument that the court will also modify the normal rules in circumstances where there is an asymmetry of information as between a claimant and a defendant with the former having markedly less information than the latter as to how a particular event occurred or as to the relevant background facts.

[55]In that context I was referred to the decision in Drake v Harbour

[2008] EWCA Civ 25

. In that case the defendants had been engaged in rewiring the claimant’s bungalow when a fire had resulted. The issue was whether the claimant had shown that the fire had been caused by the defendants’ negligence. It is significant that, at first instance, there had been a positive finding of a particular act of negligence, namely a failure to examine a cable before attaching light sockets to it (see at [12]). It was in that context that Longmore LJ said at [15]:

“It seems to me that in a case where negligence has been found and the damage which has occurred is the sort of damage which one might expect to occur from the nature of the work which the defendants have been carrying out, a court should (as Chadwick LJ said in the slightly different context of Roadrunner Properties Ltd v Dean [2003] EWCA Civ 1816 at [29], [2004] 1 EGLR 73 at [29]) ‘be prepared to take a reasonably robust approach to causation’.”

[56]It was also that context which caused Longmore LJ to say, at [16], that “on any realistic view of the case” it was for the defendants to put forward an alternative cause for the fire.

[57]In that case the particular act of negligence had been identified and proved and the route by which that act could have caused the fire shown. The effect of the decision was simply that in such circumstances and in the absence of an explanation from the defendants the court was prepared to take a robust common sense approach in inferring that the damage had been caused in that way.

[58]This was made clear by Toulson LJ at [28] where he made clear the need for “positive evidence of a breach of duty” saying:

“In the absence of any positive evidence of breach of duty, merely to show that a claimant’s loss was consistent with breach of duty by the defendant would not prove breach of duty if it would also be consistent with a credible non-negligent explanation. But where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism. That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense.”

[59]In Roadrunner Properties Ltd v Dean

[2004] EWCA Civ 1816

the Court of Appeal was addressing a situation where the defendant had performed works without giving the advance notice required under the Party Wall etc Act 1996. It was in that context that Chadwick LJ found that

the judge below had been wrong to dismiss the claim and said:

“[28] I would go further, and hold that, in a case where the building owner has chosen to carry out works to a party wall without serving the notice for which the statutory scheme provides, he should not be allowed to obtain a forensic advantage by his own failure to comply with the statutory requirements. Had the building owner in this case served the notice that he should have served, the claimant and Mr Morgan would have been in a position to instruct a surveyor to carry out a pre-works survey, and, if they had thought it necessary, to instruct a surveyor to attend (or to attend in the person of Mr Morgan) at the time when the works were being carried out. They would have been in a position to adduce much more cogent evidence as to the temporal relation between the dislocation of the floor and the carrying out of the works to the party wall. They were denied that opportunity by the course that the building owner chose to take. In taking that course, the building owner chose to ignore his obligations under the 1996 Act. [29] In such circumstances, as it seems to me, a court should be prepared to take a reasonably robust approach to causation. If it can be shown that the damage that has occurred is the sort of damage that one might expect to occur from the nature of the works that have been carried out, the court must recognise that the inability to provide any greater proof of the necessary causative link is an inability that results from the building owner’s failure to comply with its statutory obligations. In those circumstances, as it seems to me, the court should be slow to accept hypothetical and theoretical reasoning in relation to causation advanced by the building owner after the event. It is within the building owner’s power to ensure that proper evidence is, or could be, available, and if the conduct of the building owner has chosen to deny the adjoining owner the opportunity to obtain evidence, the court should be slow to accept ex post facto and hypothetical reasoning and theory. The essential requirement, of course, is that the claimant proves the causal link that he or it asserts, but, as I have said, if there is material from which such a causal link can properly be established, I think a court, in those circumstances, should be slow to discard common sense in favour of expert hypothesis.”

[60]It is to be noted that the claimant in that case had identified the works performed by the defendant and had shown that the damage in respect of which it was claiming was the kind of damage which “one might expect to occur” from such works. Chadwick LJ made it clear that the causal link between the acts complained of and the damage had to be proved but was explaining that it could be proved by establishing the circumstances from which the link could be inferred.

[61]It follows that there is no special approach which is to be applied in cases of damage by fire. Instead, the court will in particular circumstances be prepared to take a robust approach and to infer that the fire was the result of the breach of contract or negligence alleged. That is a matter of taking a common sense approach but it is particular and fact-based. That approach is not confined to instances of damage by fire. In Roadrunner Properties the court was prepared to draw inferences because the defendant’s failure to comply with the requirements of the Party Wall etc Act had deprived the claimant of the opportunity which he should have had to carry out a pre-works survey. Similarly, in Dana Joanna Smith J was prepared to draw inferences favourable to the claimant in circumstances where the defendant had failed to put forward an alternative explanation to counter the claimant’s case.

[62]The court’s willingness to draw such inferences in an appropriate case does not remove the need for a claimant to identify, plead, and prove the relevant failing. In Drake the failure to examine the cable before fitting the light sockets was proved. In Roadrunner Properties the drawing of the channel with a hammer drill was established. In Dana the failure of the seals was proved and the claimant identified the ways in which the seals were deficient. As Jefford J explained in Advanced Control Systems at [20] a claimant must “set out a case from which the appropriate inferences could be drawn”. The Circumstances in which a Claimant should be given an Opportunity to remedy Deficiencies in its Particulars of Claim.

[63]The court will be disinclined to strike out a potentially meritorious claim on the basis of deficiencies in the pleading of that claim and will lean towards giving a claimant an opportunity to remedy those deficiencies either by amendment or further particularisation.

[64]Thus, in Pantelli, although Coulson J deprecated the practice of addressing deficiencies in a pleading by requesting further particulars, he accepted, at [14], that:

“[I]t is a fact of life that, in the first instance, a court is more likely to order the provision of proper particulars than to strike out the claim.”

[65]In his judgment in In Soo Kim v Youg Geun Park

[2011] EWHC 1781 (QB)

Tugendhat J said at [40] and [41]:

“[40] However, where the court holds that there is a defect in a pleading, it is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is a reason to believe that he will be in a position to put the defect right. In para 19 of his Judgment the Master recorded that the Claimant had informed him that he already had a witness. On 17 January 2011 the Claimant demonstrated that that was not wishful thinking, or a bluff, by submitting the statements that he did not submit. [41] In those circumstances I conclude that it was wrong in principle for the Master to strike out the claim without giving the Claimant an opportunity of rectifying the defect in his case. Accordingly this appeal will be allowed.”

[66]I do not understand Tugendhat J’s reference to the Master having been “wrong in principle” to strike out the claim as purporting to lay down a general rule that an opportunity to remedy deficiencies must be given as a matter of law. Such a reading would be inconsistent with the reference in [40] to the “normal” course. Instead, Tugendhat J was simply explaining the course which would normally be appropriate. Moreover, the judge was clear that there would need to be reason to believe that the deficiency in the pleading could be remedied.

[67]The question of whether a claimant should be given an opportunity to remedy a deficient pleading will be highly dependent on the particular circumstances and the court will need to have regard to the Overriding Objective and to the requirement of fairness to both sides. Here, also, the court must be astute to avoid Micawberism. It will not be appropriate to give a party an opportunity to remedy the defects or a further chance to plead a proper case if there is no real prospect that this can be done. The best indication that it will be possible to remedy the defects will be where that party is able to identify, at least in general terms, the amendment which will be made or the particulars which will be provided.

[68]The question of whether a claimant should be given an opportunity to remedy a deficient pleading is to be addressed in the light of the circumstances as they are at the time of the decision and by reference to the material available then. The issue is whether the claimant will be able to remedy matters at that stage. Accordingly, it is not permissible for a claimant to argue that it should be allowed to delay amending or further particularising its case until after disclosure. Such an approach would be incompatible with the principles I have summarized at [38] and following above. In particular, the requirement for disclosure to be directed to the issues as identified in the pleadings means that it cannot be said that proper particularisation of a claimant’s case, which will in turn enable the issues to be identified, can await disclosure.

[69]The Claimant says that this is a case where this an asymmetry of information as between the Claimant and the Defendants which warrants the court taking a robust approach to the need for particularisation of the claim. I have explained, at [62] above, that the court’s willingness to make common sense inferences in an appropriate case does not detract from the need for a claim to be adequately particularised. Moreover, for the following reasons I do not accept that the asymmetry of information here was by any means as marked as Mr Webb submitted.

[70]The point was advanced by the Claimant with particular reference to the First Defendant but it was not conceded that it had no relevance to the claim against the Second Defendant.

[71]Mr Webb pointed to the First Defendant’s regulatory obligations and submitted that in order to comply with these the First Defendant would have undertaken a Root Cause Analysis into the cause of the Fire. He also referred to the First Defendant’s recall of a different model of sports car which was said to have been because those cars were prone to a coolant leak which was said to give rise to a risk of fire. He said that this showed that the First Defendant in particular had information to which the Claimant was not privy and which concerned potentially relevant matters of which neither the Claimant nor his experts could be aware. Underlying Mr Webb’s submission was that there was scope for believing that this information could throw light on the cause of the Fire.

[72]Mr Mallet accepted that “manufacturers generally know more about the technical aspects of their products than purchasers”. However, he said that in this case the imbalance had been addressed by the fact of the repeated expert investigations; the assistance which the First Defendant’s technicians had given in those; and the pre-action disclosure.

[73]Miss Boon emphasized that any unusual asymmetry of information was in reality as between the Claimant and the First Defendant. She also drew attention to the fact that at [22] of its Defence her client had set out a reasoned explanation of why it said that the Fire was unlikely to have been caused by a coolant leak or by the ignition of glycol or glycol vapour by the Vehicle’s exhaust system or turbocharger.

[74]I accept the force of Miss Boon’s argument. As between the Claimant and the Second Defendant the information imbalance is no more than that encountered in very many cases where a contractor performs work which the other party subsequently asserts were defective. Such an imbalance does not warrant the court in departing from the normal requirements for the pleading and proof of the claim.

[75]In relation to the First Defendant Mr Mallet was right to point to the repeated expert investigations and to the involvement of the First Defendant’s technicians in those. Such actions go a considerable way to reduce the inherent imbalance of information in a case such as this. It is, moreover, to be noted that all parties and not just the Claimant are handicapped by the damage caused to the Vehicle by the Fire and the difficulties which that poses for identifying the cause of the Fire. Any Root Cause Analysis undertaken by the First Defendant would amount to an assessment made by the First Defendant’s internal experts. It might well be cogent and those experts would have access to the First Defendant’s records but it would remain an expert analysis undertaken after the event and it would be subject to the difficulties resulting from the damage caused by the Fire. There is no basis for believing that disclosure of such Root Cause Analysis would radically change the position and would reveal the cause of the Fire in a way which could not be achieved by the repeated expert investigations.

[76]It follows that in order for the Claimant to set out a properly particularised claim identifying a cause of action against each of these Defendants the Claimant needs to identify a relevant defect; explain how the defect is said to have caused the Fire; identify the breach of contract or negligent act or omission alleged against the Defendant in question; and explain how that breach or negligence caused the defect in question. The Particulars of Claim must be read realistically and the court has to be alert to the scope for the drawing of common sense inferences but those requirements must be met.

[77]It is not sufficient for the Claimant simply to plead a potential cause for the Fire. He must go further than that and set out the basis for saying that cause was the consequence of a breach of contract or from negligence on the part of the Defendant in question. The alleged breach of contract or negligent act or omission must itself be identified with sufficient particularity. Unless that is done neither the Defendants nor the court will be able properly to identify the issues or to address them.

[78]As I will explain below this is not a case where the maxim res ipsa loquitur can properly be invoked and so it is not sufficient simply to contend that something must have gone wrong.

[79]The Defendants criticised the pleading of causation at [26] – [30] of the Particulars of Claim. There was said to have been a lack of clarity. In addition, it was said that the references at [27] to what “may have been the cause of the Fire” and the contention at [28] that a coolant leak was “the most likely cause of the Fire” were deficient in that they did not allege that those matters were more likely than not to have been the cause of the Fire. The latter criticisms flow from an unduly narrow reading of the Particulars of Claim and I do not accept that the Claimant has failed to assert that the Fire was caused by those factors on the balance of probabilities.

[80]As explained above it is open to the Claimant to put forward alternative causes of the Fire provided that he adequately explains how each of those resulted from a breach of contract or a negligent act or omission on the part of a particular defendant. It follows that consideration of the adequacy of the pleading of causation cannot properly be disentangled from consideration of the adequacy of the pleading of breach of contract and negligence and I will consider those matters together.

[81]The First Defendant’s application was based on CPR r3.4.(2)(a). Mr Webb submitted that this constrained the scope of the application and that it was, as a consequence, limited to the question of whether the Particulars of Claim disclosed no reasonable grounds for bringing the claim. The contention was that the First Defendant was not entitled to take issue with the adequacy of the particularisation of the claim nor with any failure to comply with the requirements of CPR r16.4(1).

[82]In the circumstances of this case the Claimant’s submission in that regard is unrealistic and artificial. There can be cases where a pleading discloses a cause of action but is liable to be struck out for non-compliance with the requirements of r16.4(1) or as being abusive by reason of vagueness or incoherence. Here, however, the First Defendant’s argument is that the inadequacy of the particularisation of the claim is such that the Claimant has not disclosed reasonable grounds for bringing the claim. That argument is open to the First Defendant. Asserting a breach of contract or negligence without the minimum necessary particularisation of the breach or of the negligent act or omission and of the way in which the same is said to have caused the loss on which the claim is based does not amount to showing reasonable grounds for bringing a claim. I note that in Standard Life at [66] Kerr J regarded rules 3.4(2)(a) and 3.4(2)(b) as together addressing statements of case which are “unreasonably vague, incoherent, vexatious, scurrilous or obviously ill-founded and other cases which do not amount to a legally recognisable claim” in the language of the editors of the White Book. The wording of PD3A has changed since Kerr J’s decision but the current terms of paragraphs 1.2 and 1.4 of the Practice Direction make clear the wide scope of rule 3.4(2)(a).

[83]In large part, but not entirely, the particulars of breach of contract and of negligence advanced against the First Defendant consist of converting the contractual obligation into a negative form and inserting “failing” or “failed” before elements arising from the First Defendant’s duty of care. As Coulson J explained in Pantelli at [16] such a course is “simply not good enough” to amount to adequate particularisation.

[84]Similarly, an assertion of a breach of contract or of negligence is not without more adequate particularisation of a claim. As will be seen the purported particulars on which the Claimant relies are in reality assertions rather than particulars.

[85]Dealing with the particulars in turn. The Particulars of Breach of Contract. i) This is simply a recital of the contractual obligation in a negative form. It was necessary for the Claimant to set out, to the necessary minimum standard, the respects in which it is said that the First Defendant failed to exercise reasonable care and skill and it has failed to do that. ii) This is again a recital of the contractual obligation in negative form and is also deficient. In order for the pleading to be adequate it would have been necessary for the parts in question to have been specified and the respects in which it is said that they were not fit for purpose identified. iii) The preceding points also apply here. This particular does not specify, as it would need to have done, either the parts which it is said were not fitted correctly nor the respects in which they were not fitted correctly. iv) This alleges a breach of the warranty that the Vehicle would be safe after the rebuild works. Proper particularisation of the breach of this warranty would not require the Claimant to identify the failings in the First Defendant’s processes which had led to the Vehicle being unsafe (and here Joanna Smith J’s approach in Dana would come into play). However, proper particularisation does require the Claimant to set out with specificity the respects in which the Vehicle is said to have been unsafe after those works. This is of added significance given that the Fire occurred 22 months after the works had ended. The pleading does not even begin to do this and is, accordingly, inadequate. v) The difficulty with this element of the claim is that the Claimant does not suggest that 20th October 2017 was the first time that the Vehicle had been driven since 4th December 2015 when it had been returned to the Claimant. In reality the Claimant is saying that there was a warranty that the Vehicle could be driven for more than a certain period of time or a certain number of miles after the completion of the rebuilding. Such an allegation would need to be spelt out. In any event the purported particular is too vague because it does not specify what about the Vehicle meant that it could not be driven without catching fire.

[86]It follows that the claim in breach of contract against the First Defendant is not adequately particularised. The Particulars of Negligence. i) This adds nothing to the particulars of breach of contract. ii) For this particular to have been adequate it would have been necessary for the Claimant to identify, at the very least, the faults on which he was relying. If that had been done the allegation might just have been sufficient to avoid strike out though the First Defendant would then have been entitled to ask for further particularisation of how it was said to have caused, permitted, or allowed the faults. iii) This is markedly deficient. It was necessary for the Claimant to say in terms either that none of the connections had been tightened adequately or that the allegation was being made in respect of specific connections and to identify those. It was also necessary for the Claimant to specify the respects in which he said that the tightening was either wholly absent or inadequate. iv) This is hopelessly vague. The fluid systems are not defined. It appears that the Claimant is saying that the First Defendant should have identified the potential for flammable liquid to escape and should then have removed the escape route. In order for proper particularisation it was necessary for the Claimant to specify the particular escape routes which should have been found and removed. v) This particular comes the closest to being adequately pleaded and has given me the greatest cause for thought. However, as Mr Mallet pointed out, in its current form the allegation relates to all and any of the flammable liquids listed in paragraph 9 of the Particulars of Claim and seemingly to all the hoses carrying any of such liquids. Even taking the most favourable view of this averment it is deficient because it does not specify the hoses which are said to have been bent or wrongly configured nor the respects in which they should have been configured or aligned differently. vi) This also is too vague. For the pleading to be adequate it would have had at the very least to specify what would have been found by a reasonable system of inspection, diagnosing, or testing.

[87]It follows that the claim is not adequately particularised against the First Defendant. I have stood back and reflected on the facts that the Claimant engaged the First Defendant to carry out the rebuilding of the Vehicle and that the Vehicle subsequently burst into flames in striking circumstances. However, for the reasons I will set out below when considering the applicability of the maxim of res ipsa loquitur this is not a case where the need for proper particularisation can be overlooked.

[88]The points set out at [83] and [84] above also apply here. Indeed, the characterisation of the particulars as consisting of a recital of the contractual obligations in a negative form and as putting “failing properly” in front of the elements arising from the duty of care has even greater force when applied to the claim against the Second Defendant. Save for in relation to one particular (that at xi) there is also considerable force in Miss Boon’s contention that the particulars could, without any change of wording, be cut from this pleading and pasted into a claim against a different defendant in different circumstances.

[89]The Second Defendant was engaged to perform a number of different tasks under at least four different contracts at different dates. It is of note that the Claimant has not particularised when the breaches of contract or the negligent acts or omissions are said to have occurred let alone which contract they relate to. Such particularisation would have been a pre-condition of the adequate articulation of the basis of the claim. The Particulars of Breach of Contract.

[90]The analysis set out above in relation to the breach of contract claim against the First Defendant also applies here. In fact there is further deficiency in the particularisation of this claim against the Second Defendant because neither the “parts” in question nor the “works” are defined or identified. That is a significant failure where the Second Defendant undertook different works at different times under different contracts. The Particulars of Negligence.

[91]The repetition at (vi) of the particulars of breach of contract adds nothing in light of the deficiency of those particulars.

[92]Paragraphs (vii) – (x) are hopelessly vague. The Claimant does not define or otherwise identify the “defects” which it is said should have been investigated, diagnosed, or repaired in (vii) – (ix). Nor does he particularise what the Second Defendant should have done but failed to do in any way which would enable the Second Defendant or the court to identify the act or omission which is said to constitute the negligence.

[93]Paragraph (xi) does make a positive allegation. However, this again is markedly deficient. The Claimant does not specify the damage which the Second Defendant is said to have caused to the Vehicle let alone when the damage is said to have been caused. In the absence of those details the Second Defendant cannot know the case it has to answer.

[94]Paragraph (xii) is in the same terms as the last particular of negligence asserted against the First Defendant and is deficient for the same reasons.

[95]Although the interval of time between the last of the works performed by the Second Defendant and the Fire was less than that between the completion of the rebuild works the claim against the Second Defendant is also not one where the need for proper particularisation can be overlooked.

[96]At [32] the Particulars of Claim say that the Claimant “relies on the doctrine of res ipsa loquitur”; that the Fire is itself evidence of negligence; and that the only inference which can be drawn from the circumstances of the Fire is that the First Defendant and/or the Second Defendant was negligent. Those contentions do not advance matters and do not retrieve the deficiencies in the pleading.

[97]In Drake v Harbour at [20] Longmore LJ said:

“As Megaw LJ said in the case cited by the judge, Lloyde v West Midlands Gas Board [1971] 2 All ER 1240 at 1246, [1971] 1 WLR 749 at 755, it is wrong to describe the maxim as a doctrine. Rather, it is a guide on the question whether the claimant had raised a case to answer or whether her case should fail regardless of any evidence called by the defendant.”

[98]The maxim will only come into play and enable the court to find a claim established in the absence of a rebuttal if the occurrence is such as would not have happened without negligence and if the object in question was under the sole control of the defendant at the relevant time. The relevant time for these purposes being the time when the alleged negligence occurred.

[99]Here the Vehicle was under the sole control of the First Defendant while it was performing the Rebuild Contract and under the sole control of the Second Defendant when it was performing the Stratstone Contracts. That, however, does not assist the Claimant. That is because the circumstances are not such as to indicate that the relevant occurrence, the Fire on 20th October 2017, would not have happened without negligence. Here the Defendants were engaged to undertake certain specific and limited tasks and the Vehicle had been out of their hands since they had performed those tasks.

[100]In the case of the First Defendant it had finished its works and returned the Vehicle to the Claimant in December 2015 which was 22 months before the Fire. The Vehicle had been in the control the Claimant since then apart from for the periods when the Second Defendant was undertaking the Stratstone Contracts. It simply cannot be said that the occurrence of the Fire in those circumstances gives rise to an inference of negligence on the part of the First Defendant.

[101]The Second Defendant had also been engaged to perform particular tasks. It had not had any involvement with the Vehicle since April 2017 which was 6½ months before the Fire. Again it is not possible to say that the occurrence of the Fire of itself and without more gives rise to an inference of negligence by the Second Defendant.

Should the Claimant be given an Opportunity to remedy the Deficiencies in the Pleadings?

[102]The Claimant took his stand on the contentions that the claim was adequately particularised and that the circumstances of the case made it appropriate for the court to take a robust approach. He did not provide a draft amended claim or further particulars and it was not suggested that the state of the claim could be improved in the Claimant’s current state of knowledge.

[103]I have considered the Claimant’s argument about the alleged asymmetry of information above. Mr Webb placed considerable emphasis on the fact that the Claimant had not seen the First Defendant’s Root Cause Analysis. For the reasons I have given above that does not advance matters. Moreover, any force that the argument would have at this stage would only be in relation to the claim against the First Defendant. In relation to the Second Defendant that document would be no more than a further expert opinion.

[104]Paragraph (v) of the particulars of negligence against the First Defendant comes closest to being an allegation where it might be appropriate to give the Claimant an opportunity to particularise his case properly. However, even in relation to that allegation there is no basis for believing that further particularisation would be forthcoming or would be adequate in the light of the Claimant’s current state of knowledge.

[105]As I have noted at [9] and [11] above there have been a number of expert examinations of the Vehicle. It is now 2 years since these proceedings were begun; just over 8½ years since the Fire; just over 9 years since the last of the works performed by the Second Defendant; and 10½ years since the First Defendant ended its work and returned the Vehicle to the Claimant. In those circumstances it is too late for the Claimant to be given a further opportunity to advance a properly particularised claim.

[106]Accordingly, the Defendants’ applications succeed and the claim is to be struck out.

Cited in 1 later judgment

Xenfin Fund 1 Trading Limited (In Liquidation) v GFG Limited & Ors 2026