It is quite easy for mistakes to happen and for Particulars of Claim to be contain errors, whether that be factual or legal errors. I once saw a set of particulars that argue that a foreign object in a supermarket’s restaurant’s lunch was a breach of s2 Occupiers’ Liability Act 1957.
Naturally, the first instinct would be for the Defendant to apply to strike out the claim. What usually happens is that a Defendant will apply for a strike out or, in the alternative, an unless Order. The latter is what usually issued. There is probably a reason for this.
In Soo Kim v Youg Guen Park & Others [2011] EHC 1781 (QB)
This is a case where the Claimant had issued proceedings in respect of a claim for libel but the Particular of Claim omitted the identification of persons alleged to have read the words complained of on the Defendants’ website.
The matter came before a Master who determined that the claim should be struck out, although at the hearing the Master was made aware that the Claimant had witness statements from individuals and identifying these individuals within the proceedings would have remedied the defect Particulars.
There was a very brief section of the Judgment of Tugendhat J (now retired), which can be easily quoted:-
37. Neither I on this appeal, nor the Master, could make any finding of fact. At this interim stage of the proceedings the court cannot decide whether the witnesses for the Claimant (or the Claimant himself) are afraid of the consequences if their identities are revealed. Nor can the court decide whether the witnesses are credible.
38. In my judgment, the Master took an unduly restrictive view in saying that the information which the Claimant provided after the judgment was circulated in draft was too late to have any effect on his decision to strike out the proceedings.
39. He was entitled to hold that on the material that had been before him at the hearing, the Claimant could not succeed at trial simply on the basis that publication to readers of the articles on the website could be proved only by inference. It would follow from this that the Claimant could succeed only by calling evidence of publication to identified readers.
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 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 witnesses. On 17 January 2011 the Claimant demonstrated that that was not wishful thinking, or a bluff, by submitting the statements that he did 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.
Consideration
People are human and people make mistakes. Especially in low value litigation where pre-jackson Counsel would have prepared the particulars and now will be retained in house. This is how the contaminated food/s2 Occupiers’ Liability Act 1957 issue above occurred.
Defects that can be remedied should have those remedied carried out. I am not saying that there shouldn’t be some sort of penalty. Failure to repair costs, potentially costs of the Defendant (if a hearing has occurred) but to allow a strike out on a technicality is not conducive of furthering the overriding objective.
It is wholly different if the Claimant was trying to plead something that could not be remedied. However, if the Court doesn’t have that evidence before it but it could be contained, should the Claimant be afforded an opportunity to present this to the Court before any sort of strike out application is considered? I would say if it is clear to everyone (advocates, the Court and legal representatives) that there was a remedy available, even if its not before the Court, then the Claimant should be allowed.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.