Ndungu v SPG Limited and others

The claim involved a hard-fought unfair prejudice petition and a claim for damages under section 563 of the Companies Act 2006 for breach of the statutory pre-emption provisions.

The case is of wider interest in re-affirming the importance of a proper plea of causation. It is not sufficient simply to plead that “by reason of the breach of contract/statutory provision/relevant wrongdoing, the claimant has suffered loss and damage”. Instead, any plea of causation must plead what would have happened but for the wrong complained of: see Pantelli Associates Limited v Corporate City Developments Number Two Limited [2010] EWHC 3189 (TCC), Coulson J at [11]; Building Design Partnership Limited v Standard Life Assurance Limited [2022] 1 WLR 878, Coulson LJ at [40].

In SPG, the Particulars of Claim contained no plea of causation at all. On the first day of trial, the Claimant sought permission to amend to add in a claim in causation (i.e. pleading what the Claimant says he would have done but for the wrong complained of). However that application was dismissed because it was made far too late. As a result, the Court held that the claim under section 563 was liable to be struck out (and also dismissed the claim on the merits).

Peter Head acted for the First Defendant.

A copy of the judgment can be found here.