SEEKING SUMMARY JUDGMENT: THERE ARE QUITE STRINGENT RULES: CLAIMANT HAD TO RECTIFY SITUATION TO OBTAIN ORDER

A reminder, if one were needed, that some applications have stringent formal requirements can be found in the judgment of HHJ Cawson QC (sitting as a High Court judge) in Williams & Anor v Simm & Ors [2021] EWHC 121 (Ch).  The defendants identified breaches of the procedural rules for a party applying for summary judgment. The claimants had to rectify those breaches or have them waived.

THE CASE

The claimants sought declaratory relief in relation to their appointment as fixed charged receivers over property.  The claimants sought summary judgment.  The defendants (who were litigants in person) raised a number of procedural objections to the way that the application had been brought, in particular there had been a failure to comply with the requirements of CPR 24.

THE APPLICATIONS

3.1. An application by the Claimants dated 24 December 2020 (“the SJ Application“) seeking an order pursuant to CPR 3.4(2)(a) striking out the Defence and Counterclaim, alternatively seeking summary judgment pursuant to CPR 24.2, and judgment in favour of the Claimants on the claim and counterclaim as set out in a draft order attached to the application; and

3.2. An application by the Defendants dated 11 January 2020 (“the Defendants’ Application“) seeking an order that the SJ Application itself be struck out pursuant to CPR 3.4 and/or that summary judgment be granted pursuant to CPR 24.2, alternatively that the Claimants be required to produce a further witness statement: “to comply with the relevant CPR Rules and in particular state the facts and law to properly sustain the summary application so that the Defendants can clearly understand the case they have to meet.”

THE DEFENDANTS’ APPLICATIONS

The defendants had correctly identified breaches by the claimants of the procedural requirements. However the judge found that these breaches had been remedied or were able to be waived.  The defendants’ arguments that the claimants had failed to comply with the procedural requirements were, however, correct.

The Defendants’ Application and the procedural objections taken by the Defendants

1. 1. By the Defendants’ Application and the evidence in support (JA Simm 2), and as expanded upon in the course of submissions, the Defendants took a number of procedural objections in respect of the SJ Application, namely that:

10.1. The Claimants had failed to comply with CPR 24.4(3)(b) and 24 PD para 2(3)(a) because the Defendants had been given insufficient notice of the issues to be determined, and the Claimants had failed sufficiently to identify the points of law that they relied upon;

10.2. The Claimants had failed to comply with 24 PD para 2(3)(b) in that neither the SJ Application nor the evidence in support of it stated that the SJ Application was made because the Claimants believed that on the evidence the Defendants had no real prospect of successfully defending the claim or the relevant issues, and failed state that the Claimants knew of no other reason why the disposal of the claim or relevant issues should await trial;

10.3. The Claimants had failed to comply with 24 PD para 2(5) in that the SJ Application had not drawn the Defendant’s attention to CPR 24.5(1) requiring the Defendants to file evidence 7 days prior to the hearing.

1. 1. The Defendants further relied upon the fact that the Claimants’ Skeleton Argument had been served late, and that the final electronic bundle for the hearing had only been provided late the previous evening.

   2. As to the issues raised, I held that:

12.1. The SJ Application, and the evidence in support of it, had sufficiently identified the issues to be decided on the SJ Application, Yeates 3 having, in particular, identified the relevant issues by reference to the position taken by the Claimant in their Reply and Defence to Counterclaim, and JA Simms 2 having demonstrated the Defendants’ understanding as to, and ability to deal with the relevant issues;

12.2. Whilst there had been a breach of 24 PD para 2(3)(a), this had been rectified by a fourth witness statement made by Ellen Yeates on 12 January 2021, cf. Thomas Cook v Louis Hotels SA [2013] EWHC 2139 (QB) at [38]. No prejudice had been demonstrated, and I considered that any defect could and should be waived.

12.3. So far as 24 PD para 2(5) was concerned, the SJ Application had been adjourned on 4 January 2021 without any objection being taken, the Claimants’ Solicitors had advised the Defendants as the requirements of CPR 24.5(3) in an email sent on 9 January 2021, and the Defendants had filed and served JA Simm 2, which although formally made in support of the Defendants’ Application, in practice set out the matters that the Defendants intended to rely upon in opposition to the SJ Application. Again, I could not see that any significant prejudice been occasioned, and I consider that any procedural defect could and should be waived.

12.4. As to late service of the Skeleton Argument and the electronic hearing bundle, I considered that the Defendants had suffered no discernible prejudice, and that this ought not provide a reason for not proceeding to hear the SJ Application, the Defendants being well on top of the relevant documentation and the issues that arose.

1. Further, I held that it was not open to the Defendants to apply pursuant to CPR 3.4(2)(a) to strike out the SJ Application, or to seek summary judgment in respect of it pursuant to CPR 24.2. The SJ Application and the evidence in support of it is not a “statement of case” within the meaning of CPR 3.4(2(a), and the SJ Application, as I see it, stands or falls on its merits, subject to any procedural objections that might have been be taken in relation to it. I did not understand the Defendants’ Application to be seeking summary judgment in the Defendants’ favour in respect of the claim and counterclaim, but in any event there is no basis for the Defendants to seek such relief on the merits.

2. I consider that my decision to proceed with the hearing was vindicated by the fact that it was able to proceed without the Defendants encountering any difficulty in being able to present their case in respect of the merits.