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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Perfect Marine Ltd v Sodrugestvo Turkey Tarim Tasimacilik Ithalat Ihracat Ticaret AS & Ors [2025] EWHC 1940 (Comm) (25 July 2025) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2025/1940.html Cite as: [2025] EWHC 1940 (Comm)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		25/07/2025

This judgment was handed down remotely at 2.00pm on 25 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

SIMON RAINEY KC :

1. The Claimant applies for the striking out of, or summary judgment dismissing, various counterclaims that the Defendants have pleaded by amendments made variously in May and November 2024.

The factual background to the present action

2. The action essentially concerns a cargo claim. I take the facts from the helpful summaries given in the parties' skeleton arguments and the Case Memorandum.
3. In March 2021, 51,587.190MT of Soybeans ("the Cargo") were loaded on board the Claimant's vessel "PAPA JOHN" ("the Vessel") at Barcarena, Brazil. The Cargo was to be carried to Pivdennyi, Ukraine. Seventeen bills of lading were issued by the Master which recorded that the Cargo was shipped "in apparent good order and condition". These were endorsed to the Second Defendant.
4. Upon arrival near Pivdennyi on 12th April 2021, for reasons which are in dispute between the parties (but which are immaterial for present purposes), the Vessel was unable to discharge the Cargo in Ukraine.
5. The Vessel remained off Ukraine until 6th May 2021 when she sailed for Aliaga, Turkey pursuant to agreement between the parties. This agreement resulted in the issuance to the Second Defendant by the Claimant on 12th May of eight replacement or "switch" bills of lading ("the Switch Bills"), all of which were back-dated to the loading of the cargo in Brazil and attested to the apparent good order and condition of the cargo as at the original date and place of shipment. Switch Bills 1 to 3 were endorsed to the First Defendant and Bills 7 & 8 were endorsed to the Third Defendant.
6. Like the earlier bills which they replaced, each of the Switch Bills of Lading incorporated the Hague Rules by way of a Clause Paramount.
7. The Claimant now accepts (but had previously refuted in strong terms) that while the Vessel was off Ukraine, various quantities of cargo were discarded by the crew from the Vessel.
8. As it is now put in the Claimant's Re-Amended Reply and Defence to Counterclaim at para. 83A.2:

"a very small proportion of the Cargo was removed and discarded by two members of the crew using dustpans and buckets. In the period between 16-19 April 2021, a minimal quantity of approximately 150kg of the Cargo was removed. From approximately 21 April 2021 until the Vessel's arrival at Aliaga, approximately 2 - 2.3 mt of the Cargo was removed. In total, at maximum, 2.5mt (representing c.0.005%) of the Cargo was removed."

9. The alleged reason for this discarding of cargo is that this "was in accordance with common practice" (para. 83.A.3) and was the result of droplets and lines of condensation occurring on the top of the Cargo and found by the crew during April while waiting off Ukraine: see para. 83.A.1. That explanation is not accepted by the Defendants.
10. Following arrival at Aliaga, the Cargo was jointly inspected between 10th and 11th May, therefore before the issuance of the Switch Bills.
11. It is common ground that the Cargo on that inspection was revealed not to be in apparent good order and condition as at that date. The Defendants' pleaded case as to what was observed as set out in paras. 22(2) to 22(4) of the Amended Defence and Counterclaim is as follows:

"(2) Accessible cargo in the hatchway of each hold was found to have spoiled revealing "lumpy cargo, colour change, smell, high temperature/ moisture and damaged accordingly in hold no 1, 2, 3, 4 5. The average temperatures, are more than 45 degrees and moistures are more than 20%".

(3) Photographs taken by Control Union show mould affected and blackened soya beans on the surface of the cargo piles in way of which the exposed cargo hold boundary plating is heavily moisture-stained. (4) Moreover, photographs of electronic thermometers show spear temperatures up to 53oC and surface moisture content to 23.7%."

12. As already noted above, the Switch Bills were issued on 12th May 2021, following the inspection. They were issued on behalf of the Master of the Vessel by Portinvest Logistic LLC ("the Agents") pursuant a Letter of Authorisation emailed to the Agents by the Master at 1649 hours on 12th May.
13. Discharge of the Cargo commenced on 25th May and was completed on 17th June 2021.
14. It is accepted, for present purposes, that the one year time bar in Article III Rule 6 of the Hague Rules began to run from this date (17th June 2021), being the date of "delivery of the goods or the date when the goods should have been delivered". Accordingly, for present purposes, it is accepted that the time for bringing suit in accordance with Article III Rule 6 expired on 17 June 2022.

The procedural history relating to the Defendants' amendments

15. The Claimant issued proceedings against the Defendants by a Claim Form dated 16th July 2021. By that Claim Form: "The Claimant claims a declaration that it is not liable to the Defendants (or any of them) in relation to the damaged cargo." The reference to "damaged cargo" relates back to the preceding averment in the Claim Form: "On discharge at Aliaga, Turkey, the cargo carried under Bills 1-3, 4-6 and 7-8 was found to be damaged as a result of self-heating."
16. There was then an agreed stay of proceedings between 20th September 2021 and 8th July 2022: see the Consent Order made by Foxton J dated 30th September 2021.
17. The Claimant served Particulars of Claim on 11th August 2022. Its case is that the deterioration of the Cargo was caused by inherent quality or vice (within Article IV rule 2(m) of the Hague Rules) and/or an act or omission of the shipper, his agent or representative (within Article IV rule 2(i) of the Hague Rules) and/or without the actual fault or privity of the Claimant and without the actual fault or neglect of the Claimant's agents or servants (within Article IV rule 2(q) of the Hague Rules) and/or that it is not in breach of or liable under the contracts of carriage.
18. In response, the Defendants served a Defence and Counterclaim on 6th October 2022. It is accepted by the Claimant that the original Counterclaim as served was brought within time for the purposes of Article III Rule 6 of the Hague Rules, by reason of the stay of proceedings.
19. In its original form the Counterclaim pleaded breach of contract and / or duty in the following terms.
20. By paragraph 69, the Defendants allege:

"In breach of duty and/or in breach of the Contracts of Carriage, the Claimant failed to deliver the Cargo to the Defendants in good order and condition. […] In the premises it is common ground between the parties that the Cargo was not discharged in the same apparent good order and condition as that in which it was loaded. In the premises the burden of proof is on the Claimant as bailee."

21. By paragraph 71, it is alleged:

"[….] the loss and damage to the Cargo was caused by the negligence of the Claimant, their servants or agents and/or their failure properly and carefully to load, handle, stow, carry, keep, care for and/or discharge the Cargo in breach of the Contracts of Carriage and/or Article III, rule 1 and/or Article III rule 2 of the Hague Rules" (with particulars following which advance the case that the cargo damage was caused by the Claimant's systematic failure to properly ventilate the cargo and/or leakages in the hatch covers).

22. The original Counterclaim claimed damages on behalf of each of the Defendants on the basis of the diminution in value of those parcels of Cargo which were delivered to them and the difference between the sound arrived value of the Cargo and its 'as delivered' damaged value.
23. Subsequently, the Defendants, and more particularly the Second Defendant, applied for permission to add a new allegation and a new claim for damages based on that allegation, relating to the discarding by the Claimants of portions of the Cargo at Ukraine. The parties have referred to this claim for the purposes of the Claimant's applications as "the Shortage Claim" by way of shorthand. I shall do the same.
24. It is worth noting that the Defendants had previously sought consent from the Claimant to make the Shortage Claim amendments but the Claimant refused to consent on the basis that it alleged that such claims were time-barred pursuant to Article III rule 6 Hague Rules. Consequently, an application for permission to amend was made by the Second Defendant (and the Third Defendant in respect of amended claim figures which are immaterial for present purposes) on 25th April 2024.
25. The amendment for which permission was applied for was in the following terms as to the facts relied upon (see para. 71(6) and (7) of the Amended Defence and Counterclaim):

"(6) Further, the Claimants, its servants or agents, removed a layer of damaged Cargo in Cargo Hold No. 1 from the upper part of the stowage in each hatchway while the Vessel was at Pivdennyi Roadstead and discarded it.

(7) Further, the Claimants, its servants or agents, removed damaged Cargo from Hold Nos, 2 and/or 3 and/or 4 and/or 5 and discarded it prior to the Vessel's arrival at Aliaga."

26. The new claim for damages founded on the new allegations sought to be added by amendment was in the following terms (see para. 85A):

"Further, by reason of the Claimants, their servants or agents, removal and discarding of damaged cargo (as set out above at paragraphs 71 (6) & (7)) there was a short delivery of 317.14 MT, being the difference between the 9,000 MT under the bill of lading and the 8,682.860 MT delivered. In accordance with the arrived market value of the Second Defendant's Cargo set out at paragraph 82 above, the Second Defendant has incurred a loss of USD 198,212.50 in respect of the removal of Cargo by the Claimants, their servants or agents, which had been damaged in breach of (among other things) Article III rule 2 of the Hague Rules."

27. It was agreed between the parties that the application for permission to amend would be disposed of at the Case Management Conference ("the CMC"), fixed to be heard on 10th May 2024 and concerned with the making of directions to trial.
28. The CMC was heard by Jacobs J. I have been provided with two transcripts of what took place at the CMC and in particular how the Defendants' application to amend in respect of the Shortage Claim was dealt with by the parties and by the Court. The Claimant was represented by Mr Andrew Pearson and the Defendants were represented by Ms Ruth Hosking.
29. It is significant to note that the application to amend was opened fully by Ms Hosking on the assumed basis that the Claimant's objection to the amendment on the basis of time bar was being maintained. There was then, what can only be referred to as, a volte face by the Claimant. Having refused to consent on the basis that the Shortage Claim was time barred under Article III Rule 6 of the Hague Rules and therefore having obliged the Defendants to apply for permission to amend, the Claimant then withdrew from that position and reserved their time bar argument to the full trial of the action. The position urged on the Court was that it should not 'grasp the nettle' on the time bar issue at the amendment stage, that the amendment could be made (with suitable reservations of the position) and could then be dealt with at the full trial.
30. It is clear from the transcripts that course of action was approved of by Jacobs J., who considered it undesirable to decide an important point under the Hague Rules with the obvious possibility of the point being appealed to the Court of Appeal. The objective inference to be drawn from the Claimant's proposed course was that the time bar issue and the Defendants' case that the Shortage Claim was not time barred was properly arguable for amendment purposes and should go forward for trial.
31. The Order dated 5th June 2024 made by Jacobs J. following the CMC granted the Defendants permission to amend in the terms which I have summarised above: see para. 1 of the Order. This was "on the basis that: (i) any time-bar defence that the Claimant had at the date of the CMC is preserved and/or not affected by permission to amend being granted; and (ii) in respect of any time-bar defence the Claimant may have, the Second and Third Defendants' position as at the date of the CMC is not improved by permission to amend being granted." (This reflected an issue canvassed before the Judge by Counsel as to the relevance to Article III Rule 6 of the doctrine of 'relation back'.) Consequential orders providing for responsive amendments by the Claimant to the Shortage Claim and responsive amendments by the Defendants if necessary were also made (para. 2 to 4). The usual costs order on an amendment was also made (para. 5).
32. Disclosure was ordered as part of the general scope of CMC directions; this was ordered to include documents relating to the discarding of cargo (see Issue 8 in the Disclosure Review Document: "Was cargo discarded by the Claimants, its servants or agents?").
33. Importantly, as part of the CMC Order, Jacobs J. then made full directions down to trial of the action, including the now included Shortage Claim and the discarding issue, with the trial to be listed for 10 days (including 2 days reading time). Subsequently the trial date was fixed by the Court for 11th March 2026.
34. The allegations of discarding and the Shortage Claim were first pleaded to by the Claimant in its Amended Reply and Defence to Counterclaim dated 2nd July 2024 which was verified by a Statement of Truth. Para. 83A contained a denial and an averment was made at para. 92C that there was no short delivery whether as alleged (i.e. discarded) or at all.
35. It is submitted on behalf of the Defendants that, from the documents disclosed by the Claimant in response to Disclosure Issue 8, it was shown and became clear that that there had been a deliberate removal and discarding of cargo, as shown, inter alia, by emails from the Master to the Claimant; documents evidencing the payment of crew bonuses for "cargo cleaning"; maintenance schedules and other reports which were disclosed by the Claimant as part of Extended Disclosure.
36. Following this disclosure, the Claimant served a Re-Amended Reply to Defence to Counterclaim on 18th September 2024 in which it now admitted to discarding a quantity of Cargo overboard: see the quotation from para. 83.A of that pleading which I have cited above.
37. As seen there, the Claimant admitted and averred that it had found damage to the Cargo as early as 16 April 2021, which was connected with the intentional discarding of cargo as some sort of common practice way of dealing with surface condensation damage.
38. That plea in September 2024 was responded to by the Defendants' amendments to the Re-Amended Reply to Defence to Counterclaim dated 7th November 2024.
39. For present purposes, the important paragraph is para. 36A. After various responses to the Claimant's case in answer to the Shortage Claim, the Defendants then pleaded as follows:

"(7) Further. pursuant to Article III r6 of the Hague Rules, the Claimant was obliged to give all reasonable facilities to the owners of the Cargo, including the Second Defendant, to inspect and tally the goods.

(8) Further and in any event. it will be a matter of expert evidence in due course but at this stage the Defendants say that on discovering the damage on and/or after 16 April 2021 the Claimants should:

(a) Have informed the owners of the cargo, including the Second Defendant.

[…]

(9) Further or alternatively, in issuing the switch bills of lading in early May 2021. The Claimant impliedly represented that it did not know of any facts or matters impacting on the apparent good order and condition of the Cargo and/or that it had not acted in breach of its duties under the bills of lading. Further or alternatively, it was under a duty to speak as to its knowledge of the state of the Cargo.

(10) Further or alternatively, the Claimant was under a duty in tort to clause or not issue a bill of lading which was known to contain inaccurate information as to, among other things, the quantity and condition of the cargo. For the avoidance of doubt that duty arose because the Claimant knew that the shippers. receivers and others would rely on the bills of lading to purchase and make payment for the cargo.

(11) In light of its discovery of cargo damage on /or after 16 April and thereafter, the said representations were false (as the Claimant knew) and/or it knowingly breached its duty to speak. In the premises, the Claimant is liable in deceit to the Defendants who relied upon the said implied representations and/or the Claimant's duty to speak.

(12) Further or alternatively, if (contrary to the Defendants' primary case) each or any of the representations was not made fraudulently, the Defendants will rely upon the provisions of s.2 of the Misrepresentation Act 1967 as entitling them to the relief claimed."

40. Following that amendment (which for convenience, the parties have referred to as the making of "the Misrepresentation Claims", a shorthand term which I shall also adopt, although it will be necessary to distinguish later in this judgment between various elements in the different bases pleaded underlying "the Misrepresentation Claims"), the Claimant issued an Application Notice dated 6th March 2025 seeking the strike out and summary judgment applications now in issue.
41. Subsequently the Claimant served a Rejoinder to the Re-Amendments contained in the Re-Amended Reply to Defence to Counterclaim ("the Rejoinder") on 25th March 2025. In that Rejoinder, the Claimant responded in full to the allegations made by the Defendants both as to the Shortage Claim and the Misrepresentation Claims, albeit reserving its right to strike out the amendments on the various grounds covered in the Application Notice.
42. The Defendants responded to the Rejoinder in equally full terms in a Surrejoinder dated 9th April 2025.

The Claimant's Applications

43. The Claimant's Application Notice contains a mixture of applications for summary judgment and of applications to strike out. Some of these overlap, in the sense that the arguability of the Shortage Claim and of the Misrepresentation Claims is attacked both by way of summary judgment on the basis that the Defendant's Claims have no realistic prospect of success at trial (viz. applying the well-known test: see e.g. Swain v Hillman [2001] 1 All ER 91) and by way of strike out on the basis that each of the Claims "discloses no reasonable grounds for bringing […] the claim" (see CPR Rule 3.4(2)(a)).
44. Mr Peter MacDonald Eggers KC (who appeared with Mr Pearson) for the Claimant helpfully confirmed in oral argument that, in respect of those pleas in respect of which both summary judgment and an order for strike out are sought by the Claimant, if the Claimant succeeds in its summary judgment application, the strike out application is redundant and, if the Claimant fails and summary judgment is not granted, that disposes of the strike out application in the same way.
45. I therefore consider the summary judgment applications, before turning to the separate strike out applications, which do not relate to matters of arguability but to other aspects under CPR Rule 3.4 relating to deficiencies in pleading relating specifically to the Misrepresentation Claims.

The Summary Judgment Applications

46. The Application Notice seeks summary judgment both in respect of the Shortage Claim and the Misrepresentation Claims and raises two bases for summary judgment.
47. The first relates to both Claims and provides:

"The grounds for summary judgment in CPR 24.3 are met in relation to the Second Defendant's shortage claim, and the Defendants' claims in deceit and negligent misrepresentation, because those claims have ceased to exist by reason of the Time Bar [viz. the one-year time bar in Article III, Rule 6 of the Hague Rules] and there is no other compelling reason why those claims should be disposed of at trial."

48. I shall refer to this as the Time Bar Issue.
49. The second relates only to the Misrepresentation Claims and is stated as follows:

"The Defendants' plea of reliance, which forms an essential part of their claims in deceit and negligent misrepresentation, stands no realistic prospect of success. Those claims accordingly stand no realistic prospect of success, and there is no other compelling reason why they should be disposed of at trial. The grounds for summary judgment in CPR 24.3 are accordingly met."

50. I shall refer to this as the Reliance Issue.
51. There is no meaningful dispute between the parties as to the general principles governing the applicable test for summary judgment. The court must consider whether the claimant, here the Defendants as counterclaimants, have a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 1 All ER 91. The criterion is not one of probability; it is absence of reality: Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 [158] per Lord Hobhouse. A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8].
52. Different aspects as to approach are however relevant to each of the two Issues as the Time Bar Issue is grounded on a question of law concerning the scope and operation of Article III Rule 6 of the Hague Rules, whereas the Reliance Issue rests purely on the Defendants' factual case as to their reliance on the matters pleaded as misrepresentations. I consider those different aspects, to the extent that I consider them relevant, under each Issue below.

(1) The Time Bar Issue

53. The Time Bar Issue turns upon the correct construction of Article III Rule 6 of the Hague Rules, as applied to the facts relating to the procedural position in the present case.
54. Article III Rule 6 provides (emphasis supplied):

"In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered."

55. The relevant facts are (i) that the Claimant commenced proceedings seeking "a declaration that it is not liable to the Defendants (or any of them) in relation to the damaged cargo" within the relevant one year time period; (ii) that the Defendants counter-claimed in the terms already set out above, also within time (allowing for the effect of the agreed stay).
56. The Claimant's case was put in these terms: "The new claim will not be the same as the original claim if the facts on which the cause of action is based are substantially different and/or if the loss or damage in respect of which the new claim is made is different from the loss or damage originally claimed" :Skeleton, para. 27. (Although in other places, the formulation was more stringently put, e.g. "When 'suit is brought' (as the Hague Time Bar puts it), limitation is interrupted only for claims that (1) arise out of the same facts and (2) concern the same loss and damage as the 'suit' brought in time" (para. 34), Mr MacDonald Eggers KC confirmed in oral argument that the Claimant's case was as summarised in para. 27.)
57. The Claimant contended that the Shortage Claim and Misrepresentation Claims did not arise out of the same or substantially the same facts already impleaded and since the calculation of loss and damage in the Shortage Claim (loss of cargo with market value, rather than sound vs damaged values) and Misrepresentation Claims (reliance losses) are different, the "suit" already brought did not stop time running in respect of these different claims.
58. The Defendants contended that both the Shortage Claim and the Misrepresentation Claims are essentially or substantially based on the same facts as are already in issue in respect of the existing Counterclaim which alleges firstly "In breach of duty and/or in breach of the Contracts of Carriage, the Claimant failed to deliver the Cargo to the Defendants in good order and condition" (para. 69), which is a wide and all-embracing claim and bringing of suit, and, secondly, "the loss and damage to the Cargo was caused by the negligence of the Claimant, their servants or agents and/or their failure properly and carefully to load, handle, stow, carry, keep, care for and/or discharge the Cargo in breach of the Contracts of Carriage and/or Article III, rule 1 and/or Article III rule 2 of the Hague Rules" (para. 71), which is an equally wide and all-encompassing putting in issue of the Claimant's care and custody and handling of the Cargo in general terms.
59. In oral argument, Mr Robert Thomas KC (who appeared with Ms Hosking) took a narrower approach than certain passages in the Defendants' Skeleton Argument might have been thought to have been capable of being read. For example, in para. 47, where it was said that "the Defendants' own counterclaim, which it is common ground was brought within time, satisfies the time bar and is a once and for all matter such that the time bar cannot be relied upon for any subsequent amendments".
60. The Claimant argued that this meant that the Defendants' case was that if a cargo-owner brings a claim in respect of something within time, time stops for all purposes and that any other claim of whatever nature can thereafter be brought at any time.
61. In answer, Mr Thomas KC, when questioned by me in oral argument, confirmed that he accepted there had to be some broad factual connection between the claim brought in time and the amendment, but he stressed that the position would be broadly and generously approached, and eschewing any technical approach.
62. Here, he submitted, the amendments in relation to the Shortage Claim related to the allegedly remedial discarding of damaged cargo where damage to the same cargo at the same time and in the same way was already directly in issue. Further, the alleged failure to speak out and the alleged misrepresentation of the true position as to the cargo related similarly to the very damage already in issue on the face of the original Counterclaim and to the Switch Bills already sued upon under the Counterclaim.

Disposal

63. I dismiss the Claimant's claim for summary judgment in relation to the Time Bar Issue for the following reasons.
64. First, I consider that it is inappropriate for the Claimant to seek now to re-open the arguability of the Time Bar Issue in relation to the Shortage Claim in light of (a) the course which it took (and urged the Court to take) at the CMC before Jacobs J and (b) the CMC Order which the Judge made, which plainly contemplated that the Time Bar Issue relating to the Shortage Claim would be determined at trial, together with all other issues of fact relating to the fate and condition of the Cargo at various stages in its transit and while at Ukraine and then Turkey.
65. Mr MacDonald Eggers KC argued that there is no procedural bar to the point simply being re-opened and to the Claimant changing its mind and seeking, after all, to have the application of Article III Rule 6 to the Shortage Claim determined summarily at this stage. I do not agree.
66. It is, with respect, artificial to contend, as the Claimant has, that there was no direction by Jacobs J that the Time Bar issue in relation to the Shortage Claim, in Mr MacDonald Eggers KC's words, "had to be dealt with at trial". It is clear from the face of the CMC Order that the Shortage Claim was 'allowed in' as an issue for trial and thereafter was subject to all of the other directions leading to a full trial, and as part and parcel of what was going to be decided at trial. It was not necessary for Jacobs J to go further and to direct that the issue could only be determined at trial, when that was the result and intention of his order (and the course urged on him by the Claimant itself).
67. On that basis, directions were made at the CMC for disclosure which specifically included disclosure of documents relating to the shortage and discarding question underpinning the Shortage Claim as Issue 8 in the Disclosure Review Document and those directions have been complied with. Directions for responsive pleadings on the Shortage Claim were made and have been complied with, with an extensive factual case having been developed by the Claimant explaining how, when and why cargo was discarded. Further, the factual witness evidence relating to all cargo questions has been exchanged, including a statement from the Master dealing with the discarding aspect. I note also that the parties are on the cusp of exchanging or have already exchanged expert reports on issues of the proper care of soyabean cargo, cargo-worthiness, seaworthiness, shipboard practice in respect of a carriage of a cargo of soyabeans, the cause of the damage to the cargo and remedial measures and allegations of discarding cargo.
68. In the words of CPR Rule 3.1(7), to allow the Claimant now to seek to revert to its original objection to the amendment on the basis time bar barring the Shortage Claim would be "to vary or revoke" the CMC Order in essential respects. As submitted by the Defendants, the court will usually only exercise its power under CPR Rule 3.1(7) if (a) there has been a material change in circumstances since the order was made or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated: see Tibbles v SIG Plc [2012] 1 WLR 2591.
69. There is no material change in the position regarding the Shortage Claim as such which would justify or merit the re-opening of the Time Bar Issue in relation to that claim. Indeed the only changes since the CMC Order was made are such that, to permit the Claimant to change course now, would make it wholly wasteful of costs and time already spent in dealing with the Shortage Claim in accordance with the CMC directions subsuming the Claim as one to go to be dealt with as part of the timetable to trial, together with all other cargo issues. It is far too late for the Claimant now to seek to reverse course in relation to the Shortage Claim and in my view it would be quite contrary to the overriding objective and to the policy in the Commercial Court of having any issues which a party seeks to have dealt with separately from trial fully canvassed before and determined upon by the Judge at the CMC.
70. Secondly, the Claimant seeks to justify the reversal of course by reference to the fact that the Misrepresentation Claims were only brought after the CMC and that these claims have given rise to a "vast new factual case" requiring allegedly substantial new disclosure and witness evidence with considerable costs and an effect on trial length: see e.g. Mr Stembridge's third witness statement at para. 22. This is relied upon as a material change in circumstances (if one were required to revoke or vary the CMC Order under CPR Rule 3.1(7)) or, in any event, a justification for summary judgment on the Time Bar Issue now being sought.
71. I consider that there is much force in the submission of Mr Robert Thomas KC for the Defendants that the evidence in support of the Claimant's argument does not really bear any of this out. Significantly, Mr MacDonald Eggers KC fairly conceded that there is ample time between now and trial in March 2026 for the Claimant to be able to deal fully and properly with the Misrepresentation Claims for trial. I note that the Misrepresentation Claim has already been fully pleaded out in the Claimant's Rejoinder and the Defendants' Surrejoinder.
72. The Claimant has argued that if the Misrepresentation Claims "are susceptible to strike out/summary judgment that is by far the most efficient way of dealing with them. If the Hague Time Bar needs to be considered in that context, there is no reason to leave the Shortage Claim to one side" (Skeleton, para. 20(2)).
73. In my view, this is to get things the wrong way around. If the Time Bar Issue has already been addressed at the CMC and has been agreed by the parties to be and ordered by the Court to be an issue for the trial (with an implicit recognition by all concerned that the point is properly arguable and hence a suitable issue for trial), then, in so far as the Claimant's case in relation to the Misrepresentation Claims rests on the same argument in relation to Article III Rule 6 as its case in relation to the Shortage Claim, then the appropriate course is to allow the amendment in the same way (subject to any separate or free-standing issues, viz. the Claimant's case as to arguable case as to the Reliance Issue) and have them all dealt with at the same time at trial.
74. I bear in mind additionally a point which weighed with Jacobs J. at the CMC, namely that any separate decision at this late stage on the Time Bar Issue would almost inevitably give rise to an appeal, given the importance of the ruling (whichever way it went) on Article III Rule 6 and the approach to subsequent amendments to claims made in time. This would equally inevitably lead to the disruption of the trial which has been fixed since the summer of 2024. The Claimant contends that there would be potential routes to have the Misrepresentation Claims hived off for a separate trial, but these are unworkable and impracticable and do not address the impact of any appeal on the Shortage Claim. The lateness of the application for summary judgment, not made until four months after the amendments in question, militates very strongly for the matters now to go to trial. It would be contrary to good case management and the overriding objective now to throw the carefully worked out trial timetable ordered and agreed to at the CMC into disarray.
75. Thirdly, even absent these considerations, I consider that the question of law underlying the Time Bar Issue is arguable and not one which is appropriate to be dealt with finally on a summary judgment (or, for that matter, strike out) application and for that reason alone there is a compelling reason for the Article III Rule 6 question to be decided at trial and in the light of the relevant facts as found in relation to the various claims in issue. Although Mr MacDonald Eggers KC attractively submitted that the point is a short one and one suitable for grasping at this stage, I do not agree.
76. The phrase "unless suit is brought" is one which has given rise to much uncertainty and much case law has been devoted to working out how it is to be applied in other contexts, such as who is to be the subject of proceedings, where and before whom are the proceedings to be brought, who the claimant must be etc.: see the discussion in Voyage Charters, 5th Edn., at paras. 66.183 to 66.194. See also Carver on Bills of Lading, 5th Edn, para. 9-194, p. 697 and the general view of Professors Rose and Reynolds that "Plainly difficulties will arise as to the meaning of these words."
77. In the context of the present Time Bar Issue, the point is undecided and there are sufficient statements in the cases and in the commentaries to support a wide approach to the words, or, at least, not to support an approach which focusses rigorously and strictly upon the precise factual formulation and cause of action invoked and loss claimed for, for which approach the Claimant contends.
78. I cite by way of example:

i. The Pionier [1995] 1 Ll Rep 223 per Phillips J at 227: "Provided that suit is brought... which alleges that the shipowner is liable for breach of duty owed in relation to the cargo carried it seems to me that the suit will suffice to satisfy the requirements of the Hague Rules.".

ii. The Leni [1992] 2 Ll. Rep. 48 per Judge Diamond QC at 53, col. 1 and 2: having considered the preceding paragraphs within Rule 6, he concluded "The wording of the rule is quite general and apparently free from technicality. Bearing these considerations in mind, I turn to consider what has to be done under the rule to preserve the continuing validity of a claim and to prevent the carrier from being discharged from all liability in respect of it. It seems to me that all that is necessary is that a suit must have been brought to enforce the claim within the one year period. For a claim to qualify as one brought to enforce the claim it must, I think, be one to enforce a claim for loss or damage arising under a "contract of carriage" as defined in art. I(b) of the Convention and as referred to in art. II. Provided that the suit has been brought in time and has been brought to enforce a claim arising under the particular contract of carriage in question, then prima facie the carrier is not discharged from liability under the rule."

iii. Aikens & Bools on Bills of Lading. (3rd Edn, 2020) at para. 11.197: "The Kapetan Markos demonstrates that a broad interpretation will be given to what are the issues advanced or encompassed by the suit when considering whether an amendment after the one year time bar is to be considered." See also footnote 426 referring to and relying upon The Pionier and The Toledo Carrier [2006] EWHC 2054 (Comm) and dissenting from the view taken in the then current edition of Scrutton on Charterparties.

79. That, at this stage, is enough to give the Defendants a sufficiently arguable case on an important question of law, bearing on the interpretation of a key provision in an international convention, which has given rise to extensive litigation in its other aspects, e.g. as to the scope of what liability it covers and what temporal application it has, see The Giant Ace [2024] UKSC 38; [2025] 2 All ER 661.
80. Mr MacDonald Eggers KC nevertheless relied on four matters to seek to make good his submission that the point was short and admitted of only one answer.
81. First, it was submitted that the result contended for by the Claimant was consonant with the object and purpose of the Article III Rule 6 time bar, as most recently considered by the Supreme Court in The Giant Ace, supra. There, Lord Hamblen at [63] explained the object and purpose of the time bar in these terms:

"As with any time bar, the main object and purpose of the article III, rule 6 time bar is finality. It ensures that the need for factual investigation is identified reasonably close in time to the events which have to be investigated. It also ensures that once the deadline has passed accounts or books can be closed."

82. While it is clear that the purpose of the time bar was to bring finality and closure, that does not in my view address the different question of what a claimant cargo owner must do to stop time running. If the purpose is to ensure that "the need for factual investigation is identified reasonably close in time to the events which have to be investigated", then it might be thought sufficient (or at least, at this stage, arguably sufficient) for the claimant to put the particular cargo and the carrier's breach of duty in relation to it in issue in broad terms and that fine distinctions would not have been in the mind of the drafters. To take the example of the Shortage Claim: in the context of a claim for deterioration of cargo due to want of cargo care and unseaworthiness, is there a sensible purpose in distinguishing between the main claim for cargo still on board and cargo discarded by the crew because it was surface wet damaged and deteriorated? See the broad approach commended by Aikens and Bools, cited above.
83. Secondly, while it was accepted that there was no direct authority, it was submitted that the result followed sufficiently clearly from three decisions.
84. The first was The Kapetan Markos [1986] 1 Ll Rep 211. That decision did not have to address the point presently in issue. However it is possible to read this decision as being against a narrow approach focussing on the precise articulation of the facts and claim made: see how it is read by Aikens and Bools and also by Philips J in The Pionier, supra. For this reason, the same decision is relied upon by the Defendants as establishing just such an approach.
85. The second was a dictum of Hobhouse J. in The Nordglimt [1987] 2 Lloyd's Rep 470, at 477 where in a very different context (that of who had to bring suit and the concept of "a competent plaintiff") he stated: "The plaintiff must accordingly be a competent plaintiff in respect of the cause of action which the plaintiff is seeking to assert in the subsequent proceedings …". The point in issue was not being considered at all and it was not necessary for Hobhouse J. to focus on what had to be the subject matter of the suit.
86. The high-water mark of the Claimant's case is a London arbitration award, reported as London Arbitration 10/93 (1993) 355 LMLN 4(1).
87. The very short note records that the tribunal (composition unknown) decided that "It was not sufficient to advance a cause of action in proceedings ("suit") within the one year limit. Rather, the relevant claim itself, be it for shortage, damage or whatever, had to be the subject of suit."
88. However, it seems to me that the actual decision is rather more equivocal and considered that, in certain factual circumstances, the shortage could have been claimed for. The LMLN note also records the arbitrator's / arbitrators' view that: "A shortage claim could properly be considered in the arbitration to the extent that any cargo was lost as a result of "reconditioning" the cargo following on the contamination" (contamination was the main claim advanced in time). That would suggest that a factual enquiry was required as to the cause of the shortage. It might be said that the award endorses a similar approach where the shortage results from the crew dealing with the cargo deterioration and is so bound up with it, that it is within the scope of the suit so far brought.
89. Thirdly, reliance was placed upon what was said to be the prevailing view in the textbooks, which were said to "speak with one voice". I do not agree. There are pointers in both directions, as Aikens and Bools demonstrates and the specific issue of what amendment to the original claim can be made after time has expired is not specifically addressed either at all or in sufficiently clear terms by the various authors and editors.
90. If anything, the matters relied upon by the Claimant demonstrate that the point is not straightforward and is one which is open to considerable debate. I bear in mind the special considerations at the summary judgment stage of dealing with novel points of law: see e.g. Equitable Life Assurance v Ernst & Young [2003] EWCA Civ 1114 per Brooke LJ at [38]: "As for issues of law, it has been said by this court that it is not appropriate to strike out a claim in an area of developing jurisprudence since decisions as to novel points of law should be based on actual findings of fact".
91. While it is clear that this is not a case of developing law, the Time Bar Issue is a novel and undecided point with far-ranging consequences for the effect of Article III Rule 6. As the London Award relied on by the Claimant suggests, the interrelationship on the facts between the original claim and facts relied upon and the subject of the amendment may be highly relevant. That is pre-eminently a matter for trial.
92. Thus far, I have approached the Time Bar Issue on the basis that the "suit" which must be "brought" is suit by the cargo-owner, here the Defendants, against the carrier, here the Claimant, and that, therefore, one is concerned with the nature, subject-matter and formulation of the Defendants' Counterclaim in this case.
93. I should record that the Defendants contended, in addition, that in the situation where the Claimant had commenced a claim for a negative declaration, the making of that claim constituted the bringing of suit for all purposes under Article III Rule 6. I have some difficulty with that argument on the language of the time bar in Article III Rule 6 in the context of the preceding paragraphs in Rule 6, all of which must be read together (as the Supreme Court emphasised in the different context in issue in The Giant Ace, supra, see per Lord Hamblen at [45] to [47]). But given my refusal of summary judgment on the grounds above and that the Time Bar Issue will be decided as a whole at trial, it is not necessary for me to express any concluded view and I do not do so.
94. Similarly, the Defendants advanced a separate argument to the effect that Article III Rule 6 does not apply to a claim in deceit or for a party's own fraud and therefore ipso facto could have no application at all to the Misrepresentation Claims. I have great difficulty with that argument as a matter of settled English law given the decisions in The Captain Gregos [1990] 1 Ll. Rep 310, The Alhani [2018] 2 Ll. Rep 563 and The Giant Ace, op. cit.. But, for the same reasons, I again express no concluded view upon it.

(2) The Reliance Issue

95. I have set out the Defendants' amendment in respect of the Misrepresentation Claim above and have referred to the key paragraph, namely para. 36A of the Re-Amended Reply to Defence to Counterclaim.
96. It is to be noted that the Misrepresentation Claims essentially rest on two premises.
97. First, the Defendants rely on the existence of a duty to speak on the Claimant on and from 16th April 2021 when the damage was discovered by the Claimant through its Master and crew, which duty to speak the Claimant knowingly breached from that time onwards up to and including the date of the issuance of the Switch Bills on 12th May 2021. It is alleged that the Second Defendant entered into various contracts and took various steps in, inter alia, April and early May which it would not have done, had it known the truth: see para. 36A(14). Similarly it is alleged that the First and Third Defendants would not have taken any steps to buy their portions of the Cargo from the Second Defendant: para. 36A(13). Reliance is pleaded as separately depending and based upon the duty to speak and the breach thereof: see the concluding words of para. 36A(11).
98. Secondly, the Defendants rely upon the issuance of the Switch Bills on 12th May as making an implied representation as to the condition of the Cargo. That has been expanded by the Defendants in the Surrejoinder, served in response to the Claimant's Rejoinder, to extend to implied representations made in the various drafts of the Switch Bills circulated by the Claimant before 12th May:

"As to paragraph 8.1 the Defendants have pleaded, and confirmed in Replies 1 & 2 of their Reply dated 31 January 2025 to the Claimant's Request For Further Information dated 10 January 2025, that in issuing the Switch Bills of Lading the Claimant made the implied representation(s) alleged. For the avoidance of doubt that includes all drafts of the Switch Bills of Lading which were sent (via others) between the Claimant and the Second Defendant between 5 and 12 May 2021."

99. The only basis upon which summary judgment is sought relates to the Defendants' case on reliance. As stated in the Application Notice, "The Defendants' plea of reliance, which forms an essential part of their claims in deceit and negligent misrepresentation, stands no realistic prospect of success".
100. While in Mr Stembridge's third witness statement at para. 36.1 it is stated that summary judgment was also sought in relation to the existence of a duty to speak ("The dismissal of the duty to speak pleaded in paragraph 36A(9), on the basis that it is hopeless to suggest that there was a duty to speak in these circumstances;"), that does not reflect the Application Notice, which was not sought to be amended.
101. The issue was not separately addressed by the Claimant's Skeleton Argument which focussed on reliance (in these terms: "This represents a severe and critical flaw in the Defendants' case. The Defendants plead the Switch Bills were issued "in early May 2021". The Switch Bills were actually issued between 16:49 and 20:21 on 12 May 2021. By 16:49 on 12 May 2021, the cargo holds had been opened and all of the Defendants knew the condition of the cargo. In these circumstances, the Defendants simply cannot have relied upon any implied representation, or any failure to speak, as to the condition of the Cargo.", see para. 90, emphasis as original, footnotes omitted). Nor was it addressed orally, when I identified that Mr Stembridge's statement went beyond the terms of the Application Notice and grounds therein.
102. Mr MacDonald Eggers KC submitted rather that, given the precise form of the Defendants' pleading, the reliance issue on which he relied went both to the duty to speak and the misrepresentation. He relied upon the fact that in para. 36A(11) it is stated that "in light of its discovery of cargo damage on /or after 16 April and thereafter, the said representations were false (as the Claimant knew) and/or it knowingly breached its duty to speak. In the premises, the Claimant is liable in deceit to the Defendants who relied upon the said implied representations and/or the Claimant's duty to speak." [emphasis his]. It was submitted that this meant that the Defendants' case on reliance both in relation to the duty to speak and to the implied representations, all turned on the Switch Bills and their date of issuance. That is not in my view an available reading of para. 36A(11), either read alone or when read with paras. 36A(10) and (13) and (14).
103. It follows that the case of duty to speak and all acts of reliance alleged by reference to the breach of that duty to speak (i.e. in April and early May and thereafter) will be decided at trial and are unaffected by the summary judgment application.
104. As to the Claimant's case that the reliance case in relation to the implied misrepresentation is hopeless, this is founded upon the fact that the Defendants became aware of the damaged nature of the Cargo in the inspections on 10th-11th May and therefore cannot have relied on the implied representation said to have been made as to the condition of the Cargo by the issuance of the Switch Bills on 12th May.
105. The Defendants answer that in two ways.
106. First, they refer to the implied representations made in the drafts circulated before the inspections and on and from 5th May and on acts and understandings on the part of the Defendants from that date onwards.
107. Secondly and, perhaps more importantly for the purposes of summary judgment, they rely upon the fact that their understanding as at 12th May as to the state of the Cargo was limited.
108. As it is summarised in the Defendants' Skeleton Argument at paras. 81 and 82:

"81 […] the Defendants have set out a detailed case as to what they would have done if they had known the full facts and there is no conceivable basis for suggesting that this is to be disbelieved. In particular, it is not the damage observed on 11 May which is relevant: the parties took up the bills of lading on the understanding that some damage had been observed to visible cargo; what is relevant is that the receivers did not know and could not have known that before they bought the cargo and before the ship left Ukraine, the owners had discovered the cargo to be suffering wet damage and had discarded that cargo; had the receivers known the cargo was damaged, the Second Defendant would not have sold it, and the First and Third Defendants would never have been in a position to purchase it; nor would either have agreed to do so had they known; nor, had the bills contained a reference to it would they have accepted the bills and paid for the cargo […]

82. Furthermore, this demonstrates that the Claimant's assertion that the initial inspection on 11 May meant that the Defendants, therefore, knew of "the damage" and "the condition of the cargo" is unsustainable. The Defendants knew of some, it says, relatively minor damage to the visible layer of cargo – everything beyond that is in dispute." [Emphasis as original].

109. Based on these two points, there are accordingly a range of factual issues underpinning the case on reliance in relation to the implied misrepresentation connected with the Switch Bills, whether in draft or as issued.
110. I consider that it cannot be said that there is no realistic prospect of establishing that, even if the Defendants knew that the Switch Bills contained inaccurate statements post the inspections on 10th -11th May, they did not as a matter of fact appreciate the degree or seriousness of falsity (i.e. the facts relied upon by the Defendants of the Claimant having discovered the wet damage on 16th April 2021 and having discarded disputed quantities of cargo in an effort to remedy the problem before the issue of the Switch Bills. It is at least arguable in terms of reliance, that false implied representations as to condition would, as the Defendants put it, "not have induced the Defendants to accept lightly damaged Cargo (or Cargo damaged to the extent of their knowledge), but they could have induced acceptance by concealing the true state of the Cargo. Whether or not the representations in the switch bills did have such an effect upon the Defendants is a matter of fact to be determined at trial." (Skeleton, para. 85).
111. In addition, it seems to me artificial and unrealistic to try to separate out at this stage, rather than on the full factual enquiry at trial, the issue of reliance in relation to the implied representations in the draft and issued Switch Bills from the closely related issue of reliance on the duty to speak, running from 16th April, which is unaffected by the summary judgment application.

Disposal

112. It follows that I dismiss the Claimant's summary judgment application on the second ground in relation to reliance.

The Strike Out Applications

113. Two free-standing strike out applications are made by the Claimant.
114. The first, as set out in the Application Notice relates to the alleged deficiency of the pleading of the Misrepresentation Claims:

"Paragraphs 36A(8) 36A(14)(j), and Appendices 1 and 2, of the [Re-Amended Reply to Defence to Counterclaim] advance claims in deceit and negligent misrepresentation which are missing essential elements of the causes of action and/or are insufficiently particularised and/or breach CPR PD 16 8.2(1) and 8.2(3) and/or paragraph 1.3(c) of the Commercial Court Guide. The grounds for strike out in CPR 3.4(1), 3.4(2) and 3.4(3) are accordingly met."

115. The second relates to a different pleading point, namely as to in which pleading the Misrepresentation Claims should have been pleaded by way of amendment:

"Paragraphs 36A(8) 36A(14)(j), and Appendices 1 and 2, of the [Re-Amended Reply and Defence to Counterclaim] advance new claims by way of reply in breach of CPR PD 16.9.2. The ground for strike out in CPR 3.4(3) is accordingly met."

(1) Deficiency of pleading

116. The Claimant's grounds of complaint under this heading as developed in its Skeleton Argument and orally by Mr MacDonald Eggers KC are essentially twofold. The criticism is focussed on para. 36A(9) of the Re-Amended Reply which reads:

"[…] …in issuing the switch bills of lading in early May 2021, the Claimant impliedly represented that it did not know of any facts or matters impacting on the apparent good order and condition of the Cargo and/or that it had not acted in breach of its duties under the bills of lading. Further or alternatively, it was under a duty to speak as to its knowledge of the state of the Cargo."

117. First, it is submitted that it is unclear how the implied misrepresentation is said to have been made "in issuing the switch bills of lading". It is argued that there is no hint of how the alleged misrepresentations are supposed to be implied from the fact of issuing those bills.
118. In my view, this criticism is misplaced. For good or ill, the Defendants' pleaded case is that the Switch Bills which were issued impliedly represented that the Claimant did not know of any facts or matters impacting on the apparent good order and condition of the Cargo and/or that it had not acted in breach of its duties under the bills of lading. Whether that is ultimately sustainable at trial is a separate matter, but it cannot be said that the Claimant is unaware of the case it has to meet. The facts relied upon by the Defendants as giving rise to the implied representation as to the condition of the Cargo / absence of problems with the Cargo is the fact of the issuance of the Switch Bills (or their circulation in draft) in the terms in which they were issued.
119. Secondly, it is submitted that it is wholly insufficient to plead a case of fraudulent misrepresentation or of knowing breach of a duty to speak out without identifying the relevant natural person whose state of dishonest or reckless mind is in issue or who knowingly breached the duty to speak. Here the Claimant is on surer ground.
120. It is axiomatic that "if a claim in deceit is to be made […] it is necessary to plead (a) who it is alleged made the implied representation relied on, by what means and to whom it was made […]" and that "if such an allegation is to be made then it is necessary for the pleader to plainly and distinctly allege fraud against the individual against whom such an allegation is to be made and then set out full particulars of all the primary facts and matters from which the claimant will invite a court at trial to infer deceit" : see Michael Wilson & Partners Ltd v Emmott [2022] EWHC 1481 per HHJ Pelling at [71] and [72].
121. Surprisingly, when further information was sought by the Claimant, the Defendants' initial response was that there is no specific requirement to identify a natural person when pleading deceit, which strikes me as being wrong on first principles. However, the Defendants have by Further Information now particularised their case as follows.
122. In relation to the Request by the Claimant "Please identify the natural person or persons whose relevant 'knowledge of the state of the Cargo' is to be imputed to the Claimant", the Defendants have responded:

"Not entitled. The matter is sufficiently and clearly pleaded. The (self-evident) answer is all of those people on board the Vessel and/or in the Claimant's shoreside team who were aware of the state of the cargo. Thus, on the basis of limited and unsatisfactory information and evidence thus far provided by the Claimant, this would appear to include at least (but is not necessarily limited to) the Master and crew members identified in the Claimant's Reply to the Defendants' RFI of December 2024 and whoever it is on the shore that they reported to, which appears to have included at least Capt Karelas, and anyone to whom he (and anyone else reported to) then imparted the information. For the avoidance of doubt, it is only the Claimant who currently knows exactly who else will have been aware of the state of the Cargo and this response extends to any such person as well."

123. This has been repeated in the Surrejoinder at para. 19.2.
124. Accordingly, the present case of the Defendants is that the relevant natural persons for the purposes both of the duty to speak and the implied misrepresentations are the Master and Captain Karelas. That is sufficient to allow the Claimant to know what case it has to meet. Again, I leave aside the merits of the case as pleaded which will be for trial, but it cannot as at today's date be said that the relevant natural persons have not been identified.
125. However, the sweeping portmanteau plea that the natural persons "would appear to include at least (but is not necessarily limited to) the Master and crew members identified in the Claimant's Reply to the Defendants' RFI of December 2024 and whoever it is on the shore that they reported to" is in my view far too wide and embarrassing. It is difficult to contend seriously that a crew member who sees the condition of the cargo is under any duty to speak out to the cargo owner or plays any part in any implied representation which may or may not be made by the issuance of a bill of lading. It may be that further particulars will be forthcoming after disclosure. But at present it does not seem to me that that wider plea is properly maintainable without proper particularisation giving fuller details. I refrain from striking it out at this stage but would be open to making it the subject of a direction to require the Defendants either to particularise it fully after disclosure or to abandon it.

Disposal

126. I accordingly dismiss the Claimant's first application to strike out.

(2) Claim pleaded in a Reply

127. It is common ground that, pursuant to CPR PD 16.9.2,

"A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example, a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course may be to seek the court's permission to amend the statement of case."

128. Mr Pearson for the Claimant contends that as the Defendants have sought to plead the new Misrepresentation Claims in the Re-Amended Reply, then this is an appropriate case for strike-out under CPR 3.4.2(c), under which strike out is available where "there has been a failure to comply with a rule, practice direction or court order".
129. I have held that the Misrepresentation Claims are not amenable to summary judgment and are properly arguable.
130. Given the procedural history which I have summarised above and the chronology by which the discarding claim and disclosure relevant thereto has emerged piecemeal, it would seem to me to be excessively formalistic and contrary to the overriding objective to strike out those Claims and to require them now to be re-pleaded de novo in the Counterclaim. The Misrepresentation Claims have already been fully pleaded to by both parties in the Rejoinder and Surrejoinder and in Further Information. I agree with Ms Hosking for the Defendants that nothing would usefully be served by exercising a strike out power at this stage.
131. While the Claimant relies on the decision of Pepperall J in Martlet Homes Ltd v Mulalley & Co Ltd [2021] EWHC 296 (TCC), I do not consider that the judge in that case was dealing with a case such as the present. Further, CPR PD 16.9.2 gives a discretion to that Court, hence the words, "Where new matters have come to light the appropriate course may be to seek the court's permission to amend the statement of case." [Emphasis mine] I see no benefit or good reason to disturb the present state of the pleadings where both parties are fully aware of the issues involved in the Misrepresentation Claims.

Overall Conclusions

132. The Claimant's applications are dismissed. I invite the parties to submit written submissions as to any consequential matters arising.
133. I thank all four Counsel for their succinct and clear submissions which enabled the applications, despite their scope, to be dealt with within the time estimate of one day.