11th Nov 2022
Miss Katherine Deal KC (instructed by Summerfield Browne) for the Claimant
This is the reserved judgment on the Defendant’s Application dated 7 June 2022 for a ruling by way of 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. For ease of reference, I will adopt the phrase “the land sale issue” used by the Defendant in respect of this transaction.
The N244 narrative asks the court to order that the claim proceed on the basis that the Claimant “did instruct Paul Robinson & Co solicitors to act for him in respect of the sale of the Donegal Caravan Park in its undeveloped state to Freshwater Estates (Mildenhall) Ltd and/or J.Nicholson”.
The Defendant makes clear that she in no way seeks any decision reflecting the Claimant’s credibility or honesty, all such matters obviously being for trial.
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 claim arises out of a road traffic accident on the 12th April 2015. Proceedings were issued on the 19th March 2018. The Claim Form was accompanied by a Schedule of Loss dated 16th March 2018 totalling £5,139,845.79 that was signed by a partner of the Claimant’s former solicitors Paul Robinson & Co but there is also a second version signed by the Claimant himself.
Despite issue over 4½ years ago, the claim has taken a slow and somewhat complicated path. Limited directions and budgeting took place in October 2018. A CCMC listed for December 2019 was vacated because the Defendant amended her Defence and pleaded a Counterclaim to plead fundamental dishonesty. A further CCMC was listed for April 2020 but the Claimant then applied for a general stay of proceedings, his new solicitors expressing reservations about his capacity that, it was said, placed their representation on an uncertain footing. The Order sealed 19 November 2020 set directions for capacity to be considered by way of expert evidence and resolved as a preliminary issue. Some adjustment was required to those directions owing to the way in which the Claimant and his solicitors had set about preparing the expert evidence.
As reflected in the Order sealed 12 August 2021, on the evidence as assembled from the parties’ respective psychiatrists, the Claimant conceded and so instructed that he had capacity to litigate. The preliminary trial of capacity was vacated. The case has still yet to receive full directions and cost management through to, and listing for, Trial.
It is clear that there are considerable differences between the parties as to evidence and general preparation required in this claim. In this context, the Defendant maintains her application is both necessary and central to the continuing preparation and ultimate presentation of her Defence and Counterclaim as alleges fundamental dishonesty. It is not, she says, merely an attempt to quibble or point score on a point of evidence as might best be reserved for cross-examination at trial. The Claimant submits it is just that and challenges that CPR 24 is not even procedurally approach for the proposed approach.