The judgment in Nagris Firdous v. Ecclesall Design Limited and others [2025] EWHC 90 (TCC) serves as a stark reminder of this. The court will, in appropriate cases, invoke one if its most draconian powers: to strike out a statement of case where: (a) it discloses no reasonable grounds for bringing or defending the claim; or (b) it is an abuse of the Court's process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) there has been a failure to comply with a rule, practice direction or court order.

The case highlights that poor conduct by a party in litigation will be taken into account when the court comes to decide whether to exercise its strike out power.

Background

In this decision the TCC in Leeds considered cross applications. The Claimant, Ms Firdous, applied to re-amend her Amended Particulars of Claim and the Defendants for strike out and summary judgment.

Ms Firdous' claims concerned design and construction works for a new dwelling set on a hilly site in a residential part of Sheffield. Works commenced in 2021. A short time afterwards a retaining wall on the site's boundary partially collapsed. Following intervention by the Health and Safety Executive, works were eventually completed in June 2022. The losses claimed by Ms Firdous included the costs of demolition and re-building of the dwelling, and rectifying the retaining wall – although her case was far from clear as to how each defendant was allegedly liable to her for such losses.

At the date of the applications, Ms Firdous had already discontinued her claim against the second defendant, who was a director of the first defendant architect and project manager. Her claim against the third defendant, who was a director of the structural engineer, had also been struck out, making for a problematic start to the litigation. It would seem Ms Firdous had wrongly made some claims against directors of companies in their personal capacities.

The remaining defendants facing Ms Firdous' claims were the first defendant architect and project manager, Ecclesall Design Limited ("Ecclesall"), the insurer of the structural engineer. Coverys Capital Limited ("Coverys"), and the building contractor, Monza Builders Limited ("Monza").

Ms Firdous had earlier been given permission by the Court to amend her Claim Form and Particulars of Claim. She proposed further amendments on several occasions before making her application to re-amend her Amended-Particulars of Claim.

The judgment

The TCC found that Ms Firdous had failed to adequately particularise her claims in fundamental respects. On the facts and evidence available it refused her application to re-amend her Amended Particulars of Claim and awarded strike out of each of the claims against the defendants. It would have given summary judgment in favour of each in the alternative.

In a somewhat scathing judgment, the TCC made several critical observations regarding Ms Firdous' pleaded case and her conduct of the litigation. It held that there was significant overlap between positions taken by each defendant with regard to the claim they faced. We consider some of the most telling parts of the TCC's judgment.

On the issue of inadequate pleadings, not only did the TCC note the absence of appropriate detail, but it challenged the consistency of the positions put forward by Ms Firdous:

"…the submissions made by [Ms Firdous'] counsel and pleadings drafted consistently misread (at best) and misrepresent (at worst) the effect of contemporaneous documentation cited.

The Amended Particulars of Claim is vague and unclear. The factual background to the claim is not set out adequately to enable [Monza] to understand the case it has to meet. [Ms Firdous] does not set out how, if established, breaches of contract by [Monza] either caused or contributed to the losses claimed. She simply claims all of the losses against all of the Defendant.

[Ms Firdous'] case is contradictory and/or unexplained on occasion. For example, [she] asserts that her losses were caused by [Monza's] failure to follow the designs or calculations produced by other Defendants. No facts are given as to how it is said Monza failed to follow the designs. However, in any event, as [Ms Firdous] also alleges that the design was inadequate as against other Defendants, no case is set out as to how the failure would have been causative of the losses if, as she asserts, the designs of others were negligent and in breach of duty in any event."

When it came to considering the explanation provided by Ms Firdous for having not complied with the pre-action protocol, inter-partes correspondence came back to haunt the her:

"The quotes from emails from [Ms Firdous's] counsel concerning [her] failure to engage with the pre-action protocol show a clear intention and a deliberate decision [by her] not to comply with the protocol. [Ms Firdous] had taken the view that because there were previous discussions where no amicable outcome was reached, she would not comply with it. When challenged about that view, [Ms Firdous] was said to consider compliance with the protocol to be "a waste of time". There is no real attempt to explain the her failure to comply with the pre-action protocol and the disclosure protocol.

The proposed pleading is inadequate and, unfortunately, given the history of this case and the approach taken throughout by [Ms Firdous] and her legal representatives, I do not believe that there is any realistic prospect of an adequate pleading being provided…to enable [Monza] or the court to understand the legal and factual basis for her claim."

In relation to the claim against Ecclesall, the TCC was unimpressed by the reasoning put forward by [Ms Firdous] for needing to further amend her claim and agreed with criticism regarding the suitability of an expert who prepared a report which was cited in support of her allegations:

"Although an explanation is given…that the new pleading is sought in the light of the new report of Mr Sparkes, I accept the criticisms made by [Ecclesall] that as a civil engineer, it is unclear on what basis it is asserted that Mr Sparkes is qualified to comment on the project management services provided by the [Ecclesall]. It is also clear that much of Mr Sparkes' report is based on conjecture and supposition in any event as concerns the [Ecclesall's] duties and any alleged breach of them."

Regarding the direct claim against the insurers of the engineer, the TCC damningly remarked:

"[Coverys] has declined an insurance claim in respect of [Ms Firdous'] alleged losses. However, that declinature was in respect of a claim intimated against Vitkoson, and not against the Third Defendant as pleaded. The factual basis set out in the proposed re-amendment against [Coverys] is demonstrably wrong… Although it is correct that [Ms Firdous] would step into the shoes of Vitkoson as the company is now insolvent, there is still required to be clearly set out a basis for Vitkoson being able to enforce its contract of insurance with [Coverys] when [it] asserts breaches of the insurance policy conditions in its defence to this claim. That is not done in the proposed pleading."

Comment

It is unusual to see a construction professional negligence claim litigated with as many failures affecting the pleadings as there was in this case. It is reassuring for professionals, contractors and their insurers to note that where there has been a catalogue of failures, including inadequately particularised allegations, the TCC will bring an end to litigation at an early stage.

The usual issues continue to be susceptible to valid criticism and in the right combination could provide good grounds for strike-out / summary judgement:

• Commencing proceedings and refusing to engage with the pre-action protocol. One can see how an exchange of pre-action protocol correspondence, and a meeting with the defendants thereafter, could have easily apprised Ms Firdous of the fundamental challenges with her various cases. This may well have refined her strategic focus moving into litigation and brought about better pleadings - assuming there was a properly arguable case to bring in the first place.

• Claims must provide sufficient background and adequately particularise breach of duty, causation and loss. Poor and repeated attempts to do so, as occurred here, can and should be highlighted to the Court as part of a strategy to defeat the claim. Where multiple parties are being sued, consideration must be given to the interaction between their respective duties and the cases put forward. If expert evidence is relied on to establish breach of duty, it should be given by a person who is from the same profession as the defendant.

• Initial disclosure should always be provided with statements of case in the Business and Property Courts, unless the parties have considered and properly dealt with any of the exceptions provided for by Practice Direction 57AD. Non-compliance can compound other problems with a case and colour the court's view regarding conduct (as it did here).

• Whilst it is a severe consequence for a claimant, cases will be struck out in appropriate circumstances. The conduct of a case as a whole, including pre-action, will be taken into account when the court decides whether to exercise that power. Inter-partes correspondence can be invaluable as part of the evidence put forward in a strike-out application.