Summarized and Anonymized Opinion

Factual and Procedural Background

This appeal concerns case management directions given when dealing with permission to appeal an order striking out statements of case.

The Plaintiff is a former employee of Company A, a debt recovery firm instructed by several companies. The Plaintiff qualified in The State and is a regulated foreign lawyer in England and Wales regulated by a Regulatory Body. The Plaintiff worked for Company A as a paralegal and left Company A in 2020. The Plaintiff asserts that he now operates through Company B (trading under a trading name) and also works as an employee of a solicitors firm, Company C, providing drafting and advocacy services in disputes concerning parking charges. The Plaintiff alleges that, since the inception of Company B, Company A has used various steps to bully him and attempt to put him out of business; Company A denies that allegation.

The Plaintiff issued a claim on 26 July 2023 asserting three causes of action: malicious prosecution in civil proceedings, the tort of abuse of process, and harassment under the Protection from Harassment Act 1997. The original Particulars of Claim relied upon various communications and a report to the Regulatory Body, including:

• a 26 September 2020 letter from Company A alleging breaches of confidentiality and detrimental conduct;
• a 4 February 2021 letter from Company A to the County Court (not copied to the other party in breach of the CPR rule cited in the opinion) alleging the Plaintiff was conducting litigation and holding himself out as a Barrister/Solicitor in England and Wales, which the Plaintiff says was dismissed by the court;
• a report dated 18 February 2021 by Company A to the Regulatory Body alleging similar conduct, which the Regulatory Body later dismissed on 8 September 2022.

Company A filed a Defence on 6 November 2023 admitting the correspondence and report but denying that they amount to malicious prosecution, abuse of process or harassment; allegations of malice and knowledge were also denied.

Company A then applied on 12 September 2024 to strike out the Plaintiff’s statement of case and/or for summary judgment on the basis that the claim disclosed no reasonable grounds and had no real prospects of success. On 16 October 2024 a district judge (Judge Buck) struck out the whole claim. In relation to the statutory harassment claim the judge held that the Regulatory Body report fell within an exception in s1(3)(b) of the Protection from Harassment Act 1997 and could not be relied upon; conduct in the county courts was also held not to amount to actionable harassment. The district judge concluded that the Plaintiff did not have reasonable prospects of success on the harassment claim.

The Plaintiff sought permission to appeal. On 21 May 2025 the application for permission was heard by Judge Dias (oral hearing). Company A was represented by Attorney O'Sullivan; the Plaintiff represented himself. Permission to appeal against the strike out was refused in respect of the malicious prosecution and abuse of process claims, but permission was granted in respect of the harassment claim (and associated costs order). The judge granted permission to appeal on the harassment ground because she considered it "certainly not clear" that there were no reasonable grounds, in part because the statutory exception to the 1997 Act in respect of the Regulatory Body report might not apply at common law and because the report might be relevant as part of a course of conduct.

The permission order also directed that, by a specified date, the Plaintiff should amend the Claim Form and re-plead the Particulars of Claim by means of a fresh document. The order set out deadlines for an amended Defence and Reply and directions for listing the substantive appeal, and included a short "Judge's comment" explaining the rationale for permitting repleading before the appellate hearing.

Company A sought permission to appeal parts of that permission order (paragraphs directing amended pleadings) on two grounds: (1) that directing amendments before the substantive appeal was a procedural irregularity that risked turning the appeal into a rehearing, and (2) that the judge was wrong in treating a Reply as sufficient to raise a new common law harassment claim because a Reply cannot introduce a new cause of action. Permission to appeal on those points was granted by another appellate judge (Judge Warby) for consideration by this court. An application by the Plaintiff to set aside the grant of permission on the basis that Company A had misled the court was considered and refused by Judge Whipple, but Company A was directed to respond to the allegation; material was filed by both sides and read by this court.

The parties complied with the directions and filed amended pleadings before this court. This appeal concerned whether the directions to replead before the substantive appeal were permissible and whether the Reply could properly be treated as having raised a common law harassment claim.

Legal Issues Presented

1. Whether case management directions ordering the claimant to amend and re-plead the Particulars of Claim before the hearing of the substantive appeal were procedurally irregular in a way that improperly risked foreclosing Company A's arguments on appeal (i.e., whether such directions converted a review into an impermissible rehearing).
2. Whether a Reply can be treated as having raised a new cause of action (specifically a common law harassment claim) such that the claimant may pursue that claim on appeal despite not having pleaded it expressly in the original Particulars of Claim.

Arguments of the Parties

Appellant's Arguments (Company A)

• Paragraphs directing the pleadings to be amended before the appeal (paragraph 3 of the permission order) were a serious procedural irregularity because they required the appellate court to consider amended pleadings that were not before the district judge, thereby risking that the appellate court would consider a new claim on which there had been no prior decision.
• By directing amendments to the pleadings before appeal, the order risked converting what should have been a review of the lower court's decision into a rehearing, contrary to the principles governing rehearings as exceptions to the general rule (relying on the authorities cited in the opinion).
• The district judge was incorrect to treat the Reply as bringing in common law harassment; a Reply cannot properly introduce a new cause of action.

Respondent's Arguments (Plaintiff)

• There was nothing wrong with permitting repleading of the claim before the appeal; it was sensible to replead so that the appellate court could focus on the harassment claim and avoid wasting time on causes of action previously struck out.
• The controlling requirement is that facts must be pleaded (CPR r16.4(1)(a)), not the legal label; if the facts pleaded could support a claim in common law harassment then the claimant is entitled to rely on that case even if the original Particulars did not use that legal label.
• The appellate court has all the powers of the lower court (CPR r52.20), and could therefore consider the repleaded claim.
• The amended Particulars of Claim filed before this court included three specific new instances the Plaintiff wished to rely upon; the Plaintiff contended that these did not amount to introducing an entirely novel claim but were additions to the conduct already relied on.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Precedent A (originally cited in the opinion)	Principles about when an appellate court should treat an appeal as a rehearing; rehearing is an exception to the general rule and requires unusual factors (as explained in the passages referenced from the authority).	The Appellant relied on this authority to argue that directing amendments before appeal risked converting the appeal into a rehearing. The court considered the authority but concluded that, in context, the directions to replead did not have the effect of foreclosing issues or turning the appeal into a rehearing.
Precedent B (originally cited in the opinion)	That appellate courts can, in appropriate cases, permit new points to be taken on appeal.	The court noted this principle and relied on it to support the proposition that the appellate court may consider material in amended pleadings and permit points not strictly in the original pleadings, if appropriate. This supported the conclusion that the direction to replead did not improperly convert the appeal into a rehearing.

Court's Reasoning and Analysis

The court divided the analysis into the two grounds advanced by Company A.

On the second ground (whether a Reply could properly be treated as having raised a common law harassment claim), the court rejected Company A's argument. The court explained that the governing pleading rule requires a concise statement of facts relied on (CPR r16.4(1)(a)). If the facts pleaded in the Particulars of Claim amount to a case of common law harassment, the claimant is entitled to argue that the pleaded facts support that cause of action even if the Particulars did not expressly label it as such. Conversely, merely labelling something as a common law claim will not save it if the facts do not support it. The court therefore held that the Reply's contention that common law harassment was relied upon did not improperly introduce a new cause of action in circumstances where the factual foundation was already pleaded.

Turning to the first ground (whether ordering amended pleadings before the appeal was procedurally irregular and risked foreclosing Company A's arguments), the court focused on the effect of the order as a matter of objective reading and context. The court characterized paragraphs 3–5 of the order as case management measures made when granting permission to appeal the district judge's strike out order. The key question was whether those directions had the effect of preventing Company A from advancing arguments on appeal or of making the appellate process into a rehearing rather than a review.

The court concluded that the directions did not have such an effect. The amended pleading would not insulate the Plaintiff from the need to persuade the appellate judge that the allegations made out a sufficiently arguable harassment claim. The order was intended to let the appellate court see a clearly pleaded harassment claim and to adjudicate whether, on the pleaded material (as repleaded), the strike out should be upheld or overturned. The court observed that an alternative procedural approach — inviting draft amended Particulars rather than ordering formal pleadings — would have avoided the present dispute, but that does not mean the order made was unlawful in principle. The court also noted that the district judge had not struck the claim out for lack of clarity alone but on substantive grounds; repleading therefore permitted a clear presentation of the case the Plaintiff wished to advance.

The court accepted that, in theory, the order could be read widely enough to permit an entirely novel harassment case to be pleaded, but found that the district judge did not intend that result and the actual amendments before the court did not amount to an entirely new and unrelated case. The court further noted that appellate courts may permit new points on appeal where appropriate and cited the relevant authority in support of that proposition.

Holding and Implications

HOLDING: The appeal by Company A against the case management directions (the order directing the Plaintiff to amend and replead) is DISMISSED.

Implications:

• The case management directions requiring the Plaintiff to replead the harassment claim before the substantive appeal remain in force and are not, on the facts and in context, a procedural irregularity that improperly converted the appeal into a rehearing.
• The Plaintiff was entitled to rely on the pleaded facts as supporting a common law harassment claim even though the original Particulars did not expressly use that legal label; accordingly, the court dismissed the argument that a Reply cannot raise a new cause of action in the circumstances of this case.
• The practical effect is that the appellate judge hearing the strike out appeal will consider the repleaded harassment claim (as the Plaintiff has framed it) and determine whether the strike out should stand. If the pleaded material does not make out a claim with a real prospect of success, the strike out will be upheld; if the case has sufficient merit, the appeal will be allowed.
• The court emphasized that no broader change in law was made; the decision turned on the proper interpretation of the particular case management order, the content of the pleadings, and established principles about pleading and the appellate court's powers. The opinion notes that inviting draft amended pleadings might be preferable in future to avoid similar disputes.

This summary is strictly confined to the content of the provided opinion and is fully anonymized in accordance with the instructions supplied.