DEFENDANT GRANTED SUMMARY JUDGMENT ON A SINGLE EVIDENTIAL ISSUE: CPR 24.2 CAN BE USED IN THIS CONTEXT

In Holdgate v Bishop [2022] EWHC 2850 (KB) Master Thornett granted the defendant’s application for summary judgement on a specific issue.   The Master granted the defendant judgment on the issue of whether the claimant had instructed solicitors to sell land prior to the date that the claimant was injured.  The claimant’s failure to plead a response to this issue, and put his case in response with clarity, played a large part in determining the court’s approach.

“It is entirely consistent with the Overriding Objective that the Defendant should not be put to the time expense of proving something that, but for the Claimant’s stance, ought not to need proving”

THE CASE

The claimant brings an action for damages for personal injury. Part of the damages claim is for loss of earnings. The claimant claims for future loss of earnings of £3,647,484.00. This claim is based on the basis of the injuries causing a failure to develop a caravan park.  The claimant’s case was that his injuries led to the park being sold and not been developed as a highly profitable venture.  However the defendants had sight of conveyancing documents which indicated that the claimant had planned to sell the park prior to being injured and, indeed, there were conveyancing documents which indicated the land was to be sold rather than developed.

In 2019 the defendant set out an amended defence and counterclaim which set out, in clear and categorical terms, the defendant’s case that the claimant was being fundamentally dishonest.  This was put forward on the basis that the land in question was to be sold before the claimant was injured.

The claimant’s reply and defence to counterclaim were not at all clear on the claimant’s response to the defendant’s pleaded case that he had instructed lawyers to sell the land prior to the accident.

THE DEFENDANT’S APPLICATION

The defendant issued an application for a ruling under CPR 24.2

“ that the Claimant had, in fact, instructed a firm of solicitors in respect of a proposed property transaction before his accident in 2015″.

CPR 24.2

1. 1. Whilst the provisions of CPR 24.2 are familiar, the particular feature of this case is the Defendant’s utilisation of the rule to resolve the land sale issue as “a particular issue”.

24.2 The court may give summary judgment against a claimant or defend-

ant on the whole of a claim or on a particular issue if—

(a) it considers that—

(i) that claimant has no real prospect of succeeding on the claim

or issue; … and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

THE MASTER’S DECISION

The Master granted the defendant’s application.

1. 1. Both parties and the court are entitled to rely upon the Statements of Case as the definitive record of the parties’ positions. Be that as it may, I have considered both extracts from party-party correspondence relied upon by the Defendant and the 11 May 2022 Witness Statement from Mr Essat, the Claimant’s legal representative in reply to the Application.

1. 1. Para 13 of the Defendant’s Reply to the Claimant’s Defence to Counterclaim is very specific:

…unless the matters raised in paragraphs 3 to 6 of the Reply (which are expressly incorporated into the Defence to Counterclaim) are formally withdrawn within 14 days of service of this statement of case then the Defendant will apply for summary judgment on the issues raised on those paragraphs”.

1. 1. I note in May 2022 the Defendant’s solicitors drew the Claimant’s solicitors’ attention to this paragraph and their intended Application. Mr Essat’s reply on 11 May 2022 was to express perplexion and suggested the points were for trial. On the assumption it was needed, he invited further elaboration from the Defendant why the paragraphs should be withdrawn.

1. 1. Much of Mr Essat’s witness statement comprises unnecessary recitation of the Statements of Case and the Claimant’s witness statement. In terms of answering the Application, he explains that because the Claimant has not denied he instructed his former solicitors, then he is not required to prove the absence of instruction. According to Para 10 b “The documents say what they say, Inferences to be drawn from the documents are, with respect, for the trial judge”.

1. 1. With respect, I find this explanation difficult to follow; certainly if it not to be taken as proof that the Claimant does indeed reserve his position. Either way, it runs in complete contradiction to the open confirmation of uncomplicated non-admission presented by Miss Deal in her submissions.

1. 1. Following his remarks above, Mr Essat repeats the pleaded point that none of the documents were CC-ed to the Claimant and none bear his signature. He suggests that this accordingly indicates why a decision about the land sale issue is not appropriate for a summary judgment application but because [Para 10 d.] “It would be striking for the court to conclude on a summary basis, as the Defendant seeks, that the Claimant did [my underlining] give instructions”. Determination of the land sale issue is [Para 11] “one small part of these complex and intertwined issues“.

1. 1. I again express difficulty in both understanding this as a commentary but also how it can be consistent with Miss Deal’s version of the Claimant’s case.

1. 1. Despite Mr Essat’s emphasis upon the apparently complex overall evidential picture, he questions why [Para 10e.] the Defendant had not simply served a Notice to Admit facts under CPR 32.18.

1. 1. Given my analysis so far, I follow why the Defendant did not think this would suffice.

1. 1. In summary, Mr Essat illustrates – and so the Claimant maintains – a somewhat contradictory position. It serves only to endorse the sense of ambiguity and potential reservation of alternative position(s) in the context of the Claimant’s Reply.

1. 1. This is not a helpful response to the Application, given the single issue put by the Defendant before the court. I agree with, as highly pertinent, the question posited in Mr Higgins’ skeleton argument: if the Claimant is not seeking to pursue an argument that he had never instructed his former solicitors in respect of the land sale issue, and so is not proposing to rebut the contents of the conveyancing file, on what realistic basis might the court at trial conclude that the land sale issue was independent of the Claimant’s instructions at the time?

1. 1. It is appropriate only following an understanding of the issues raised in this Application to consider the Claimant’s procedural challenge whether CPR 24 is appropriate in principle, regardless of asserted merits. Miss Deal submits the very basis of the Application is procedurally misconceived because it seeks to conclude an issue amongst the many that will still need to be determined at trial. Further, determination of this issue if in favour of the Defendant will not assist the parties to settle. The land sale issue would not, by analogy, have been suitable for the trial of a preliminary issue and so neither should Part 24 be used, as here, to deal with a selected small part of a party’s case purely to serve the purposes of perceived tactical advantage.

1. 1. Miss Deal referred me to various cases she maintains are binding authority for her proposition as to inapplicability of Part 24 for these purposes.

1. 1. In Anan Kasei Co Ltd v Neo Chemicals & Oxides (Europe) Ltd [2021] EWHC 1035 (Ch), the defendant (Neo) applied for permission to withdraw admissions made in relation to an alleged infringement of patents held by the claimant patentee (Rhodia), and for summary judgment on three legal issues. The issues in Neo’s summary judgment application were connected to the admissions it sought to withdraw [para 9]. Similarly, in the context of the summary judgment application, the possibility of overlap or alternative reliance on a trial of preliminary issues was apposite [79-80].

Mr Justice Fancourt emphasised that whilst the procedural application of summary judgment of CPR 24.2 embraced “issue(s) of law, fact or mixed fact and law” [80], an “issue” to which the rule is applied must still be part of the claim, whether entirely severable (e.g. a particular claim for damages) or “a component of a single claim (e.g. the question of infringement, or the existence of a duty, breach of a duty, causation or loss)” [82]. Hence, in continuing at [82]:

“It is not any factual or legal issue that is one among many that would need to be decided at trial to resolve such a claim or part of a claim. If the determination of an issue before trial has no consequences except that there is one fewer issue for trial then the court has not given summary judgment and the application was not for summary judgment. If it were otherwise, parties would be able to pick and choose the issues on which they thought their cases were strong and seek to have them determined in isolation, in an attempt to achieve a tactical victory and cause the respondent to incur heavy costs liability at an early stage”.

1. 1. I find it difficult to categorise these obiter comments in Kasei as having the clear cut and concrete application Miss Deal argues they have in submitting that the Defendant’s application is not procedurally recognisable. Quite to the contrary, this case is support for utilising Part 24 if the applicant conversely can show that, if judgment on the issue is granted, “consequences” would arise in the case beyond merely reducing the scope of scrutiny at trial and hence would be progressive in terms of the preparation of the case.

Of course, the Claimant is entirely open to submit that, as a question of discretion, the court ought not to find evidential and time savings (as “consequences”) avoided by acceding to the Defendant’s application sufficient to grant the Application. But that is a very different stance and argument.

Significantly, the judge in Kasei did not seek to amplify what “consequences” might be apposite for such an application but no reader would, I would have thought, have expected an attempt to define them. To do so would obviously run the risk of a prescriptive definition of the limitations of Part 24 when the rule has been drafted with conscious flexibility according to the facts of the particular case and Application.

I entirely accept that no court will invite the use of Part 24 for the purposes of mere “cherry picking” issues upon which an applicant feels confident and yet which serve as merely tactical or strategic achievements, as may enhance the perceived merits of a party’s case. The distinction evident from the observations in Kasei, however, is between (i) the elimination of an issue that has meaningful and purposive effect on the litigation having regard to the Overriding Objective and (ii) the mere tactical selection of an issue that would not have such effect. Litigation, in this context, of course includes the preparation for trial as well as at trial. So, as acknowledged in the first quotation in Kasei from [82], Part 24 might still be entirely procedurally sustainable if the issue is only but a component of a single claim and, as such, will not have the sweeping dispositive effect of, say, judgment on the entire claim or an entire head of loss.

1. 1. In the context of the facts of Kasei case and the drafted declarations sought by way of the summary application, the court happened not to be satisfied that the application was appropriate because pertinent questions would still arise at trial [85]. There were [90] “factual questions at the heart of the resolution of the alleged infringement”, such that the “declaration sought by way of summary judgement is too general to determine any of the issues in the claim”; “the meaning of the statute and the application of principles of EU law should be examined on the basis of the facts found at trial, and with the benefit of a more through analysis of the laws of EU member states”.

I find nothing in the reasoning for dismissal of a summary judgment application in Kasei that firmly establishes a principle by which the Defendant’s Application in this case must fail as a matter of procedural definition. The only support Kasei provides is to illustrate how the court on such an application must balance the factors of advantage and disadvantage in seeking on an interim application to pre-empt an issue at trial.

Put in that way, it seems unnecessary to have referred to this case at all and still less cite it, as Miss Deal did, as a binding authority “as to the approach to be taken to applications under CPR Part 24”.

1. 1. It is also important not to seek draw too much from cases where the appropriateness of summary judgement was very much linked to similar questions as to the applicability of directing a trial of preliminary issue because, on the facts of those cases, both might have been a possibility. The two are not procedurally contiguous, although there may well be a sufficient element of overlap that consideration of one might be considered in the context of the other (irrespective whether the comparison is by way of analogy or because applications for both are before the court). This is what happened in Kasei and also in Vardy v Rooneyi [2021] EWHC 1888, another case Miss Deal asserts is binding upon me.

1. 1. In Vardy, Mrs Justice Steyn was entirely clear at [76] that whether approached on the basis of summary judgment or trial of preliminary issue, the issue relied upon “is one of many factual issues to be resolved at trial in determining whether the truth defence is made out. It seems highly unlikely that resolution of this issue would assist the parties to settle the claim”. In that case, the summary judgement application sought to strike out 5 sub-paragraphs within some 47 sub-paragraphs extending to 32 pages.

1. 1. These decisions reflect consideration of issues interlinked with others. Further, where the resolution of such issues might be argued as also suitable for resolution by way of preliminary issue because the factual and evidential enquiry would be limited. Save to iterate the ultimate feature of discretion on the facts of a given case they do not assist the Claimant, however, to argue that Part 24 simply has no application where, on the face of it, there is only one rational interpretation yet an opposing party has sought to obfuscate that interpretation.

1. 1. Conclusion

The Defendant’s Application is granted because I am satisfied that:

(i) Part 24 is procedurally available and arguable;

(ii) There is a sufficient lack of clarity and transparency in the Claimant’s case about the land sale issue, in his Statements of Case through to his response to the Application, that it justifies an interim declaratory decision;

(iii) It is entirely consistent with the Overriding Objective that the Defendant should not be put to the time expense of proving something that, but for the Claimant’s stance, ought not to need proving;

(iv) Such declaration does not affect, undermine or qualify the separate ongoing process of exploring the Claimant’s range of injuries and medical condition(s), or the allegation of fundamental dishonesty, neither will it fetter the trial of them.