Practice and procedure – Application – Summary judgment – Claimant seeking damages against defendant following traffic accident – Defendant applying for ruling under CPR 24.2 on particular issue whether claimant instructed solicitors in respect of proposed land transaction before accident – Whether defendant procedurally justified in pursuing Part 24 application – Whether sufficient lack of clarity and transparency about land sale – Application granted
The claimant carried on a property development business. In 2015, he was injured in a traffic accident. At the date of his injuries, the claimant said he was in the process of managing a lucrative redevelopment called the Donegal Caravan Park, which he had been profitably involved in for many years. At the time of his accident, he and his partners were on the point of constructing six houses which he said would have sold for a total of £1.2m with a net profit to the venture of £600,000.
While in hospital, the claimant said he received an offer to buy the remaining land for £280,000 which he accepted to mitigate his losses. His capital gain was consequently at least £300,000 less than it would otherwise have been, had he continued with the project.
The claimant brought proceedings against the defendant claiming damages for personal injury. Part of the claim was for loss of earnings of £3,647,484 on the basis that, as a result of his injuries, he had been unable to develop the caravan park as a highly profitable venture.
In 2019, the defendant served an amended defence and counterclaim which alleged that the claimant was being fundamentally dishonest because a conveyancing file indicated that the claimant had instructed solicitors to sell the land prior to his accident.
The claimant’s reply and defence to counterclaim alleged that he had significant and progressive memory problems and denied any fraud or knowing dishonesty.
The defendant applied under CPR 24.2 for a ruling that the claimant had, in fact, instructed solicitors in respect of the proposed land sale before his accident.
Held: The application was granted.
(1) The documents within the conveyancing file created a rebuttable presumption that they were evidence of the claimant’s intended transaction. It would ordinarily therefore fall to the claimant, as the person at the centre of that presumption, either to do nothing that suggested the presumption was unreliable or, in the alternative, to set out a positive case rebutting the presumption in the clearest terms in his reply and defence to counterclaim.
That was an entirely reasonable and ordinary expectation as to how such a statement of case should be pleaded. There was no case for doubt being permitted to remain for clarification in, say, witness statements and still less for trial. The claimant’s reply and defence did not approach the ostensible evidential meaning of the conveyancing file in a straightforward way. There was no other compelling reason why the issue should be disposed of at a trial.
(2) The claimant confirmed in his reply that he did not dispute that the documents were genuine. Care always had to be taken to distinguish between admission of authenticity of a document and admission as to its contents. His position was unclear and so an interim decision was called for, to avoid the time and expense that would otherwise follow.
If the claimant was not seeking to pursue an argument that he had never instructed his former solicitors in respect of the land sale issue, and so was not proposing to rebut the contents of the conveyancing file, the question was on what realistic basis the court might conclude at trial that the land sale issue was independent of the claimant’s instructions at the time.
(3) The claimant had argued that the very basis of the application was procedurally misconceived because it sought to conclude an issue amongst the many that would still need to be determined at trial. Further, determination of that issue if in favour of the defendant would 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.
However, no court would invite the use of Part 24 for the purposes of mere “cherry picking” issues upon which an applicant felt confident and yet which served as merely tactical or strategic achievements, as might enhance the perceived merits of a party’s case. There was a distinction between the elimination of an issue that had meaningful and purposive effect on the litigation having regard to the overriding objective and the mere tactical selection of an issue that would not have such effect.
Litigation, in that context, included the preparation for trial as well as at trial. Part 24 might still be procedurally sustainable if the issue was only a component of a single claim and, as such, would not have the sweeping dispositive effect of judgment on the entire claim or an entire head of loss: Anan Kasei Co Ltd v Neo Chemicals & Oxides (Europe) Ltd [2021] EWHC 1035 (Ch) considered.
It was important not to seek to draw too much from cases where the appropriateness of summary judgment was very much linked to similar questions as to the applicability of directing a trial of preliminary issue. The two were not procedurally contiguous, although there might well be a sufficient element of overlap that consideration of one might be considered in the context of the other (irrespective of whether the comparison was by way of analogy or because applications for both were before the court).
(4) In the present case, the defendant’s application would be granted because the court was satisfied that: (i) Part 24 was procedurally available and arguable; (ii) There was a sufficient lack of clarity and transparency in the claimant’s case about the land sale issue, that it justified an interim declaratory decision; (iii) It was 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; and (iv) Such declaration did not affect, undermine or qualify the separate ongoing process of exploring the claimant’s range of injuries and medical conditions, or the allegation of fundamental dishonesty, neither would it fetter the trial of them.
Katherine Deal KC (instructed by Summerfield Browne Solicitors) appeared for the claimant; Paul Higgins (instructed by Horwich Farrelly) appeared for the defendant.
Click here to read a transcript of Holdgate v Bishop
Eileen O’Grady, barrister
