The Adam brothers had been business partners. The brothers had agreed to dissolve the partnership, and the Claimant now sought an account from his brother, the Defendant, of his 50 per cent share of the partnership assets. The Defendant’s case was that parts of the Claimant’s pleadings were unclear and contradictory, and he therefore issued the strike out application in relation to those specific parts of the Claimant’s Particulars of Claim.

The Particulars of Claim alleged that the brothers had entered into an oral agreement relating to the partnership. The Defendant complained that the way in which it was pleaded was vague, and that the Claimant described it in multiple, contradictory ways as the case progressed.

The relevant provision of the English Civil Procedure Rules is rule 3.4(2): pleadings may be struck out where they disclose “no reasonable grounds for bringing or defending the claim”, amount to “an abuse of the court’s process” or because “there has been a failure to comply with a rule, practice direction or court order”.

Having considered recent English authorities, Deputy Master Valentine noted that the power to strike out all or part of a statement of case is a discretionary case management power, and – being a draconian power – should be used only as a last resort. While a Claimant ought to be free to “advance his case as he wishes”, it is clear that pleadings may be struck out where they are “endlessly mutable” (Nekoti Ltd v Univilla Ltd) or where the Claimant is “flip-flopping” (Ashraf v Dominic Lester Solicitors).

Ultimately, it is “necessary that the other party understands the case which is being made against him”, so pleadings must be set out intelligibly (Towler v Wills).

The Court held that the inconsistencies regarding the alleged oral agreement were not “irreconcilable”. Even where there were inconsistencies, Deputy Master Valentine commented that they were not “so serious as to lead to a conclusion that the case has been altered in different tellings”; nor did the “alleged inconsistencies render the case incomprehensible, unreasonably vague, abusive of the court process or otherwise deserving of strike out”.

Similarly, while the pleadings were not as clear as they could have been, this was “not a case where the Claimant has disregarded or flouted the rules”, and neither was it a case where “the Defendant cannot understand the case being made … to prepare a defence”.

The strike out application therefore failed entirely, underscoring how pleadings will not be struck out lightly.

While Harneys does not advise on English law, various offshore jurisdictions have similar strike out provisions to English CPR 3.4(2). For example, see rule 26.3(1) of the Eastern Caribbean Supreme Court Civil Procedure Rules (applicable in the BVI and Anguilla), Order 18, rule 19 of both the Cayman Islands Grand Court Rules and the Bermuda Rules of the Supreme Court, and rule 6/13(1) of the Jersey Royal Court Rules. Therefore, as is typical in matters of civil procedure, Adam v Adam  will likely be seen as relevant guidance by the courts in these common law offshore jurisdictions when considering strike out applications.