In the case of Andrew Mitchell MP v News Group Newspapers Limited  EWCA Civ 1537 certain rules concerning how cases should be handled were clarified. The particular issue was whether the basis of the claim (the Particulars) were clear enough.
Often with mass produced claims from Gladstones, MIL Collections and BW Legal Services they are not. These are referred to as "deficient" claims in that the defendant is left in the dark about why they are being taken to court in the first place. And since deficient claims disadvantage a defendant, you can ask the court in your defence statement to either strike-out the claim, or ask the claimant (the solicitor really) to replead the case or ask the court to consider a civil restraint order. These are "sanctions" that can be applied under CPR 3.4.
To get a relief from sanction, the claimant (the solicitor really) must explain why. Courts are likely to take a firm line on those who breach rules or court orders. As the Master of the Rolls put it in the judgment: “well-intentioned incompetence, for which there is no good reason, should not usually attract relief from a sanction unless the default is trivial”. Key points that come out of the decision include:
- Where non-compliance is “trivial” or “insignificant” and an application for relief from sanctions is made promptly, the court will usually grant relief.
- Otherwise the defaulting party must persuade the court that there was good reason for the default. Overlooking a deadline is unlikely to be a good reason.
- The courts will look more favourably on applications for an extension of time made before time has expired than applications for relief from sanction made after the event.
- An application for relief from a sanction presupposes that the sanction was properly imposed in the first place. If a party wishes to contend otherwise, the proper route is an appeal or, exceptionally, an application to vary or revoke the order.
How do you use this case?
In your defence you point out "the particulars are deficient in that they fail to show a cause of action and you would ask the court to consider the ruling in Mitchell and request the case be struck out or re-pleaded pursuant to CPR 3.4."
In some cases, judges will strike these out. In others they will refer the case back to be re-pleaded. Rarely would they consider a restraint order but it pays to ask.