An application for summary judgment under CPR Part 24 has succeeded in determining a land issue in favour of the defendant in Holdgate v Bishop [2022] EWHC 2850 (KB), a case which illustrates the flexibility of the Civil Procedure Rules in appropriate cases.
The claim arose from a road traffic accident in April 2015. Proceedings were issued in March 2018 but had progressed slowly. The claimant’s schedule of loss totalled more than £5m, two-thirds of which was loss of future earnings. The claimant argued that at the date of the accident he was in the process of managing a lucrative redevelopment called the Donegal Caravan Park and on the point of constructing six houses the sale of which would have secured a net profit of around £600,000. While in hospital, he received an offer to buy the remaining land in the development for £280,000, which he accepted to mitigate his losses. His capital gain was therefore less than it would have been had he been able to pursue his active involvement with the project.
In October 2018, the claimant had responded to the defendant’s request for information confirming that he had not considered the sale of the land undeveloped prior to the accident, that the verbal offer to purchase the land undeveloped in April 2015 was the first he had received and that he accepted it, without negotiation, because of his accident-related injuries.
The defendant’s amended defence and counterclaim served in November 2019, pleaded that the claimant had received a pre-accident offer to purchase the land undeveloped for £250,000 plus a further £67,500 for copyright to drawings and related issues. A memorandum of sale and correspondence between agents and solicitors in 2014 confirmed this.
The claimant’s reply and defence to counterclaim served in March 2022 alleged that he had significant and progressive memory problems, and put the defendant to proof that he was involved in the pre-accident transaction since none of the documentation showed that he was copied, and none of the e-mails included him.
The conveyancing documents created a rebuttable presumption that they were evidence of the claimant’s intended transaction. So, it fell to him either to do nothing to suggest the presumption was unreliable or to set out in the clearest terms a positive case rebutting the presumption in his reply and defence to counterclaim. The claimant’s position was unclear and contradictory. He maintained that due to memory issues he could neither admit nor deny factual matters but the pleadings created the impression that a counter-factual position was being preserved.
The court was satisfied that CPR Part 24 was procedurally available and arguable and that there was a sufficient lack of clarity and transparency in the claimant’s case about the land sale issue to justify an interim declaratory decision. It was also consistent with the overriding objective that the defendant should not be put to the time and expense of proving something which but for the claimant’s stance ought not to need proving. The claim would proceed on the basis that the claimant did instruct solicitors to act for him in the pre-accident transaction.
Louise Clark is a property law consultant and mediator
