Mr John Christopher Burrell and Others (Claimants/ Respondents) v Helical (Bramshott Place) Ltd (Defendant/ Applicant)
| Jurisdiction | England & Wales |
| Judge | David Casement |
| Judgment Date | 18 December 2015 |
| Neutral Citation | [2015] EWHC 3727 (Ch) |
| Docket Number | Case No: HC-2015-002626 |
| Court | Chancery Division |
| Date | 18 December 2015 |
[2015] EWHC 3727 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Casement QC
Sitting as a Deputy High Court Judge
Case No: HC-2015-002626
Jonathan Steinert and Paul Skinner (instructed by Gosschalks) for the Claimant
Ian Mill QC, Hanif MussaandKate Urell (instructed by Mishcon De Reya) for the Defendant
Hearing dates: 14 and 15 December 2016
David Casement QC :
Background
The Defendant carries on a business in the development of real property. It owns the freehold to a retirement village developed and situated at Bramshott Place, Liphook ("Bramshott Place"). So far as relevant for present purposes, Bramshott Place consists of approximately 151 separate dwellings as well as a range of central facilities and amenities, including a clubhouse.
The Claimants are comprised of four married couples who each entered leases and are either current or former residents at Bramshott Place. Each was initially granted a long lease to a dwelling at Bramshott Place ("the Leases"). More particularly:
i) On 24 April 2009, the First and Second Claimants entered into a lease for a property having paid a premium of £475,000. They remain in residence at their property.
ii) On 19 May 2009, the Third and Fourth Claimants entered into a lease for a property, having paid a premium of £445,000. On 10 January 2013, they subsequently assigned their lease to third parties. Upon that assignment, which was effected for a purchase price of £540,000, arrangements were made for the payment of a fee to the Defendant.
iii) On 26 August 2009, the Fifth and Sixth Claimants entered into a lease for a property having paid a premium of £290,000. On 7 September 2013, they subsequently assigned their lease to third parties. Upon that assignment, which was effected for a purchase price of £325,000, arrangements were made for the payment of a fee to the Defendant.
iv) On 22 June 2010, the Seventh and Eighth Claimants entered into a lease for a property, having paid a premium of £492,500. They remain in residence at the property.
The Leases are in identical terms save for the consideration payable and insofar as relevant those terms are set out below.
There are presently two sets of proceedings brought by the Claimants. By a claim form dated 17 April 2014 the Claimants issued proceedings ("the UTCCR Claim") asserting that key provisions in the Leases were unenforceable pursuant to the provisions of The Unfair Terms in Consumer Contracts Regulations 1999 ("the Regulations"). In summary the Claimants contend in paragraph 7 of the Amended Particulars of Claim in the UTCCR Claim that clauses 2. 13 (d), 2.13(e), 2.13.3(g), 4.3 and 4.6 of the Leases ("the Transfer Fee Provisions") are unfair pursuant to the Regulations and by reason of Regulation 8(1) thereof not binding upon them.
In the UTCCR Claim the Claimants set out the circumstances in which they came to enter into the Leases. The Claimants contend in all the circumstances including the events and statements leading up to the execution of the Leases, notwithstanding the fact that they had independent solicitors acting for them, were such that the Transfer Fee Provisions are unfair. The Defendant takes issue with the factual averments of the Claimants and in any event disputes the assertion that the relevant provisions of the Leases are unfair.
On 28 November 2014 the Claimants issued County Court proceedings ("the CCA Claim") under the Consumer Credit Act 1974 ("the Act") asserting the Transfer Fee Provisions amounted to the provision of credit and that the Leases are consumer credit agreements within the meaning of sections 8 and 9 of the Act. The Claimants contend that by reason of the leases falling within section 8 and 9 of the Act the Transfer Fee Provisions are unenforceable. The Defendant did not at the relevant time hold a Consumer Credit Licence and therefore if the Transfer Fee Provisions constitute a regulated agreement it is asserted that they are unenforceable. Further the Leases do not contain the requisite information and protections required by the Consumer Credit (Agreements) Regulations 1983/1553 ("the 1983 Regulations") and are therefore said to be unenforceable in the absence of an order of the Court. Further, the Claimants contend that the relationship arising out of the Transfer Fee Provisions is unfair under section 140A such that relief may be granted under section 140B of the Act.
The Defendant by its Defence in the CCA claim denies that there is any provision of credit under the Transfer Fee Provisions and contends that the Act has no application.
On 5 May 2015 Master Teverson ordered the transfer of the CCA Claim to the High Court and gave directions in respect of both claims.
A notice of trial date was issued on 12 June 2015 listing the trial of both cases in what will be a ten day trial to be filed in a window between 11 July and 28 July 2016.
On 2 November 2015 the Defendant issued its summary judgment/strike out application ("the Application") in respect of the CCA Claim. On 5 November 2015 Master Teverson directed that the Application be heard before a Judge and adjourned the costs management. It is clear that the outcome of the Application may have a significant effect on both the length of the trial and also the amount of costs which will be incurred, which will in any event be substantial. In any event if either the claim or the defence in the CCA Claim do not have reasonable prospects of succeeding there is, absent reasons to the contrary, good reason to dispose of it at the earliest stage. Such would enable the parties to focus their efforts and resources on the UTCCR Claim which is not the subject of the Application and to consider their prospects of success afresh in the light of that decision.
Application
This hearing of the Application has been listed by order. In the Application the Defendant is seeking summary judgment pursuant to CPR r 24.2 and/or strike out of the Claim Form and Particulars of Claim pursuant to CPR r 3.4(2)(a). The Claimants are represented by Jonathan Steinert of Counsel leading Paul Skinner of Counsel. The Defendants are represented by Ian Mill QC leading Hanif Mussa and Kate Urell, of counsel.
The Application relates solely to the CCA Claim. In seeking summary judgment pursuant to CPR r 24.2 an applicant must establish that the respondent has no real prospect of succeeding on the claim or issue and also that there is no other compelling reason why the case or issue should be disposed of at trial. Real prospects of success means prospects which are more than fanciful and it is clear that the Court must not engage in a mini trial. However where there is a short point of law including a point of construction which can properly be dealt with on the materials available such a case may be suitable for summary judgment. It is a notable feature of this case that whereas the Defendant has brought the Application the Claimants also contend that I should grant summary judgment in their favour. In submissions Mr Steinert on behalf of the Claimants said this was a "gentle request" on behalf of the Claimants for summary judgment and of a secondary nature, his primary submission was that the Application should be refused.
The overall burden of proof in respect of CPR r 24.2 rests upon an applicant to establish the respondent has no realistic prospect of succeeding on the claim or the defence to the claim and that there is no other compelling reason for the claim or defence to go to trial.
CPR r 3.4(2)(a) empowers the Court to strike out a statement of case if it appears to the Court that the statement of case discloses no reasonable grounds for bringing or defending the claim. In the event that the Court strikes out the statement of claim it may enter judgment against the respondent pursuant to Practice Direction 3A, paragraph 4.2.
One important issue that I must consider is whether the Application should be dealt with at this stage at all bearing in mind the UTCCR Claim will proceed to trial in any event. It is also clear that the background to the Claimants entering the Leases will also be considered at some length during the trial. If there is a significant part of the background factual matrix that is unclear and which may impact upon the CCA Claim then the appropriate course would be to either dismiss the Application or to adjourn it to the trial.
In my judgment the issues arising in the Application are such that I am able to come to a clear view as to whether the claim has a real prospect of succeeding and/or whether it discloses reasonable grounds for bringing or defending the claim. I am satisfied that it is appropriate to deal with the Application substantively in circumstances where there has been full argument before me by experienced counsel and I am satisfied that there is no reason to consider that matters would be better determined at a trial. The Claimants' suggestion that there may be more documents that will emerge through the disclosure process is just that, a suggestion and in fairness Mr Steinert put it no higher in his submissions.
Relevant terms of the Leases
The Leases are in identical terms and the relevant provisions for the purposes...
To continue reading
Request your trial