There have been two recent decisions concerning the proper approach to the drafting of pleadings. Allegedly defective statements of case remain susceptible to strike-out applications.
Powis case
In Powis Street Estates (No 3) Ltd v Winston & Strawn London LLP and another, the court considered a barrister's exercise of professional judgment, and the implications of other (perhaps better) ways of pleading having been available. The court held that there would be no sustainable claim in negligence unless a claimant could demonstrate that no reasonably competent barrister would have made the same decision. Pleading strategy is inherently subjective and legal advisers have to balance competing factors. Two professionals can arrive at very different views without either having fallen below the expected standards of reasonable care and competence.
Powis also demonstrated a continued willingness by the court to strike out unmeritorious claims, following a number of important decisions in 2025 dealing with summary judgment and strike out applications. Whilst there may be grounds for leniency, such as where shortcomings can easily be remedied, claimants need to properly identify and articulate their claim. As the court said in Powis, if the question for determination at summary judgment is clear, the interests of justice and the overriding objective dictate that a "bad" claim should be brought to an end promptly.
Spurgeon case
In contrast, in Spurgeon & Ors v Capita PLC, the Court refused an application to strike out approximately 4,000 data breach claims in which the claimants were seeking compensation for damage and distress caused by a cyber-attack. The defendant applied to strike out all of the claims on the basis that the pleading was an abuse of process. The emotive language of the pleadings had been generated by the lawyers, not the claimants themselves. Whilst the court was concerned about the language that had been used and directed the claimants to make amendments, it refused to strike out the claims and accepted that there is a "wide latitude" about how instructions are taken and advice given, not least when faced with this volume of claimants. The court expressed reluctance to strike out 3,973 claims because of decisions taken by the legal team, especially as the abuse of process related to the pleading (rather than because the claimants had made false claims).
Conclusion
Great care must be taken when drafting pleadings to ensure they are accurate and the claims sustainable. They should also faithfully reflect the client's instructions. However, legal professionals will be reassured that the courts still recognise the necessity to allow scope for professional judgment.
Given the costs involved in litigation and the heavy work load faced by our courts it is also understandable that they remain willing to shut down weak and unmeritorious claims.
