Re‑pleading on Appeal and the Primacy of Facts over Labels: Court of Appeal Endorses Case‑Management Directions Preceding a Strike‑Out Appeal

Introduction

In Yamba v BW Legal Services Ltd [2025] EWCA Civ 1299, the Court of Appeal (Civil Division) considered a focussed challenge to case‑management directions made by a High Court judge when granting permission to appeal a strike‑out order. The central questions were procedural and appellate in character: (i) whether it was proper to require the claimant to serve amended pleadings (rather than provide draft amendments) before the substantive appeal against strike‑out; and (ii) whether a claimant can rely on a cause of action (here, “harassment at common law”) that was not expressly labelled in the Particulars of Claim but whose facts were pleaded there, notwithstanding debate about whether the Reply had “introduced” the claim.

The underlying dispute arises from the professional fall‑out between the respondent to this appeal, Mr Jackson Yamba, a regulated foreign lawyer and former BW Legal paralegal, and BW Legal Services Ltd, a prominent debt recovery firm active in parking charge litigation. Following his departure from BW, Mr Yamba (through his company and as an employee of a solicitors’ firm) began assisting motorists and others in parking charge disputes. He alleges BW embarked on a course of conduct amounting to harassment, including letters to courts and complaints to the SRA, all denied by BW.

At first instance, District Judge Buck struck out the entirety of Mr Yamba’s claim (malicious prosecution in civil proceedings, abuse of process, and harassment under the Protection from Harassment Act 1997). On an oral renewal, Dias J refused permission to appeal on malicious prosecution and abuse of process, but granted permission on harassment (and consequentially as to costs), and directed that the claim form and Particulars be re‑pleaded to focus the appeal on harassment (statutory and/or at common law). BW appealed those directions.

The Court of Appeal (Birss LJ, with whom Asplin LJ agreed) dismissed BW’s appeal, confirming the permissibility of such directions and emphasising two important procedural points of wider significance: first, appellate courts may, in appropriate cases, direct re‑pleading ahead of a strike‑out appeal without thereby converting the appeal from a review to a rehearing; and secondly, pleading law depends on facts rather than legal labels—if the pleaded facts support a cause of action, the claim can be advanced even if the Particulars of Claim do not expressly name it.

Summary of the Judgment

The appeal challenged paragraphs 3–5 of Dias J’s order, which required:

Amendment of the claim form to plead harassment under the Protection from Harassment Act 1997 (noting a slip in the order as “2017”) and/or at common law; and
Service of fresh Particulars of Claim replacing the originals, with a timetable for consequential amended Defence and Reply.

Two grounds were advanced:

Ground 1 (Serious procedural irregularity): It was wrong in principle to require amended pleadings before the strike‑out appeal, because the appellate court would then consider a “new” case not ruled on below, foreclosing appeal issues and turning a review into a rehearing.
Ground 2 (Pleading in a Reply): A Reply cannot introduce a new cause of action; the judge erred in saying common law harassment had been sufficiently raised.

The Court of Appeal dismissed both grounds:

Ground 2 dismissed: Under CPR 16.4(1)(a) it is the concise statement of facts that matters. If the facts pleaded in the Particulars of Claim support a cause of action (here, common law harassment), the claim may be advanced even if not expressly labelled. Conversely, a label alone cannot rescue an inadequately pleaded factual case. The Court did not hold that a Reply can create a new cause of action; rather, the point is that the cause of action was already latent in the facts pleaded.
Ground 1 dismissed: The directions did not foreclose the appeal or re‑characterise it as a rehearing. They facilitated clarity by ensuring the appellate judge would see the harassment claim as the appellant actually wished to put it, while leaving intact the core question on appeal: do the pleaded facts disclose a claim with a real prospect of success, or was the strike‑out correct? Birss LJ added a practice pointer: had the judge directed submission of draft amended pleadings rather than requiring formal service of amended statements of case, the present appeal likely would not have arisen. Drafts will often be the better course.

The Court also noted and rejected a collateral attempt to set aside permission to appeal based on alleged misleading of the court: the record showed the idea of re‑pleading originated with the judge, although BW’s counsel suggested using “fresh particulars,” and no impropriety arose.

Detailed Analysis

Precedents and Authorities Cited

London Borough of Ealing v Richardson [2005] EWCA Civ 1798: Cited for the distinction between an appeal by way of review (the norm) and a rehearing (exceptional). BW argued that requiring full amended pleadings pushed the appeal into rehearing territory. The Court rejected this, holding that facilitating clarity via re‑pleading did not alter the appellate function or standard. The appeal court would still ask whether the claim should have been struck out on substance.
Singh v Dass [2019] EWCA Civ 360: Cited to underline that appellate courts may permit new points to be taken on appeal. This supported the proposition that seeing a clarified or even slightly evolved pleaded case on appeal does not of itself convert the process into a rehearing, particularly where the essence of the challenged claim (harassment) remains the same.
CPR 16.4(1)(a): The bedrock pleading rule: statements of case must include a concise statement of the facts relied on. Birss LJ’s application of this rule is central: legal characterisations are subordinate to facts. If facts pleaded can found a cause of action, omitting the label does not preclude the claim.
CPR 52.20: Confirms the broad powers of the appellate court, including the power to make orders and give directions that the lower court could have made. This supported the judge’s jurisdiction to direct re‑pleading.
Protection from Harassment Act 1997, s 1(3): Although the Court of Appeal did not decide harassment merits, s 1(3) figured in the background because the district judge held that BW’s SRA complaint fell within an exception (described in the judgment as s 1(3)(b)) and so could not itself ground statutory harassment. The permission judge (Dias J) considered that even if a particular act is exempt under the statute, it may still be relevant to a course of conduct, and the common law analysis may differ.

Legal Reasoning

1) Ground 2: Facts, not labels, define the pleaded cause of action

Birss LJ reaffirmed a foundational pleading principle: what must be pleaded are the material facts; the legal label is not determinative. Applying CPR 16.4(1)(a):

If the facts set out in the Particulars of Claim are sufficient to found a claim in “harassment at common law,” the claimant may advance that legal characterisation even if the Particulars did not spell out the label at the time of strike‑out.
Conversely, merely labelling a claim “harassment at common law” cannot salvage a pleading that lacks facts sufficient to support the elements of the tort.

The Court did not endorse the proposition that a Reply can introduce a new claim. Instead, it neutralised the ground by focusing on where causes of action are constituted: in the facts already pleaded in the Particulars of Claim. The Reply’s reference to common law harassment is therefore neither necessary nor decisive; the ultimate question is whether the Particulars contained the requisite facts. On this basis, Ground 2 failed.

2) Ground 1: Directions to re‑plead before a strike‑out appeal are permissible and do not convert the appeal into a rehearing

The Court accepted Warby LJ’s permission‑stage concern—that ordering fully amended pleadings without drafts might risk foreclosing issues—but held, on the facts, that the directions did not have that effect:

The appeal remained one against a strike‑out order. The appellant still had to persuade the appellate court that the harassment claim, as pleaded, has a real prospect of success; otherwise the strike‑out stands.
The directions’ purpose was to ensure that the appellate court would adjudicate the harassment case as the claimant actually wished to advance it following Dias J’s permission decision, and to avoid wasting time on now‑irrelevant claims already refused permission.
In practical effect, seeing formally amended pleadings at the appeal is not materially different from seeing draft amendments—a course appellate courts often adopt. The difference is formal, not substantive.
The order did not authorise invention of an “entirely new” case. It contemplated re‑pleading the harassment case already in play, including, as Birss LJ observed, the arguability of “harassment at common law.”
Permitting new points on appeal is not unusual (Singh v Dass). The mere presence of refined or additional pleading detail does not transmute a review into a rehearing (Ealing v Richardson).

Birss LJ nonetheless offered practical guidance with systemic value: in future, where the appeal court wishes to see how a claim would be configured if allowed to proceed, directing the provision of draft amended statements of case may be the better course to avoid unnecessary procedural skirmishes about whether the appeal has been pre‑empted.

3) Context: Statutory vs common law harassment

While not deciding the harassment merits, the judgment preserves Dias J’s analysis that:

It is arguable that a claim in harassment at common law may be advanced on the facts pleaded (subject to debate about the parameters of any such claim).
An act shielded by a statutory exception under s 1(3) of the 1997 Act (e.g., a regulatory complaint) may nonetheless be relevant to the overall “course of conduct,” and at least arguably so for common law analysis, even if it cannot itself found statutory liability.

The Court of Appeal made clear, however, that its ruling is confined to the propriety of the case‑management directions and the pleading principle; whether the harassment claim (statutory or common law) ultimately has real prospects is for the appeal against the strike‑out to decide.

Impact and Implications

A. Appellate case management

Endorsement of proactive directions: Appellate judges may, when granting permission to appeal a strike‑out, direct re‑pleading so that the appeal addresses the claim as the appellant truly proposes to advance it.
Best practice—use drafts where possible: To minimise satellite disputes about “foreclosing” issues or morphing the appeal into a rehearing, directing draft amended statements of case will often be preferable. Birss LJ’s comment is likely to be influential procedural guidance.
No automatic rehearing: Re‑pleading ahead of an appeal does not inherently alter the appellate standard from review to rehearing (Ealing v Richardson remains the touchstone).

B. Pleading strategy

Facts first, labels second: Practitioners should prioritise pleading all material facts supporting each potential cause of action. If the facts are properly pleaded, legal characterisations may evolve without necessitating wholesale re‑pleading.
Replies are not for new claims: While the Court sidestepped endorsing new claims via a Reply, it signalled that a Reply’s labels are neither necessary nor sufficient; the Particulars of Claim must bear the factual weight of any cause of action.
Strike‑out resilience: On an application to strike out or for summary judgment, the presence or absence of a label matters less than whether the pleaded facts, taken at their highest, satisfy the elements of the cause of action.

C. Harassment claims involving regulatory complaints

Statutory carve‑outs remain significant: Acts such as bona fide complaints to a regulator may be protected under s 1(3) of the 1997 Act; they may not themselves found statutory harassment liabilities.
Evidential relevance: Such acts may still form part of the evidential matrix of a “course of conduct,” and the common law analysis may not map perfectly onto statutory exceptions—an issue to be addressed on the merits in due course.

Complex Concepts Simplified

Strike out: A court order terminating a claim (in whole or part) on the basis that it discloses no reasonable grounds, is an abuse of process, or otherwise cannot succeed.
Summary judgment: Judgment without trial where a party has no real prospect of success and there is no other compelling reason for a trial.
Permission to appeal: Leave required to bring an appeal, usually granted where the appeal has a real prospect of success or there is some other compelling reason.
Appeal by review vs rehearing: In a review, the appellate court examines whether the lower court erred; in a rehearing, it re‑determines the issue. Rehearings are exceptional.
Case‑management directions: Procedural orders aimed at ensuring efficient and fair progress of litigation, including timetables, pleadings amendments, and hearing logistics.
Pleadings (statements of case): Formal documents setting out each party’s case. The Particulars of Claim must plead the material facts; legal labels help but do not substitute for facts.
Reply: A pleading responding to a Defence. It should not be used to introduce new causes of action; its role is responsive.
Course of conduct (harassment): A pattern of conduct involving at least two occasions; context and overall pattern matter, not just isolated acts.
PHA 1997, s 1(3) exceptions: Statutory defences for conduct pursued (among other grounds) under enactment, to prevent/detect crime, or where reasonable in the circumstances. An exempt act may still be contextually relevant even if it cannot found liability under the Act.

Additional Observations

Typographical slip: The order referred to the “Protection from Harassment Act 2017.” The correct statute is the Protection from Harassment Act 1997. Nothing turned on this slip.
Context of alleged harassment: The underlying acts included letters accusing Mr Yamba of misconduct and complaints to the SRA. The district judge treated the SRA report as falling within a statutory exception; the permission judge considered that common law harassment might still be arguable.
Procedural history: After Dias J’s directions, the parties complied and served amended pleadings. The strike‑out appeal on harassment is listed for March 2026 (window originally October–December 2025), where the merits will be scrutinised.
Costs: Given permission on harassment was granted, the district judge’s costs order was set aside by Dias J as a consequence; the present appeal did not disturb that.

Conclusion

Yamba v BW Legal Services Ltd clarifies and reinforces two practical, system‑wide points in civil procedure:

Appellate case‑management latitude: When granting permission to appeal a strike‑out, the appellate court may direct re‑pleading so the appeal targets the live claim as the appellant intends to put it. This does not, without more, convert a review into a rehearing or foreclose appeal issues. Nevertheless, directing draft amended pleadings will often be the better course to avoid collateral controversy.
Primacy of facts in pleadings: Causes of action are constituted by facts, not labels. If the Particulars of Claim set out facts sufficient to found a claim (e.g., harassment at common law), the claimant is not precluded from advancing that legal characterisation merely because it was not expressly named in the original pleading. Labels cannot cure factual inadequacy; nor do they limit a factually adequate case.

The judgment thereby offers measured, pragmatic guidance for appellate case management and for drafting strategy: build pleadings on a robust factual foundation; use appellate directions to streamline and clarify, not to circumvent; and, where re‑pleading is contemplated on appeal, prefer drafts where possible. Although the Court did not decide the substance of the harassment claim, its procedural rulings will resonate in many appeals from strike‑out decisions and will encourage clearer, more focused appellate adjudication without undue procedural formalism.