QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
STEPHEN JASON FREEAR | Claimant | |
-and- | ||
DUNCAN EDWARD ANDREWS | Defendant |
____________________
John Beresford for the Defendant
Hearing date: 10th November 2020
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down will be deemed to be 2.30 pm on 17th December 2020.
DEPUTY MASTER HILL QC:
Introduction
The factual background
"…..I really need this Savernake project to come to a conclusion. When I first embarked on this project in May 2014 I assumed I would only need to finance it for six months. However 22 months down the road and there are no signs of the project coming to the end.
I feel I have been very patient and invested three times what we originally discussed in May 2014. I feel now is a fair time to set a date for this project to come to an end.
Last summer we had a similar discussion and you were going to raise the finance to give me my money back as you have personally guaranteed this project... I now must give a deadline date that I must insist we adhere to. I think a fair time limit would be the 31st March. If we have not exchanged on Savernake Road by then I will expect my money back in full.
You say the money is held in escrow so I would expect you to withdraw that money".
The legal framework
"1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example 'Money owed £5000',
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant."
"i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];
iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman;
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it".
The Claimant's submissions
The Defendant's submissions
Analysis and decision