Mr Paul John Toner v Telford Homes Ltd
| Jurisdiction | England & Wales |
| Judge | Master Dagnall |
| Judgment Date | 05 March 2021 |
| Neutral Citation | [2021] EWHC 516 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004230 |
| Date | 05 March 2021 |
[2021] EWHC 516 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Dagnall
Case No: QB-2019-004230
And Case No. F01CL461
(“the High Court Claim”)
(“the County Court Claim”)
Mr Paul Toner appeared in person representing himself (the Claimant in both Claims)
Ms Amy Proferes (instructed by Reynolds Porter Chamberlain) for the First and Second Defendants in the High Court Claim
Mr Christopher Moss (instructed by Rradar Limited) for the Third Defendant in the High Court Claim
Mr John Beresford (instructed by DAC Beachcroft LLP) for the Fourth Defendants in the High Court Claim and for the First and Second Defendants in the County Court Claim
Mr James Hamerton-Stove (instructed by J B Leitch Limited) for the Fifth and Sixth Defendants in the High Court Claim
Hearing dates: 21 and 22 October and 5 November 2020
A — Introduction
This is my Judgment in relation to various Applications to strike-out or for reverse summary judgment, made in: Claim QB-2019-004230 (“the High Court Claim”) by the First Defendant Telford Homes Limited (“THL”) and the Second Defendant Bishopsgate Apartments Limited (“Bishopsgate”) by Notice of Application dated 20 February 2020, and by the Third Defendant Avantgarde-BGR Management Limited (“Avantgarde”) by Notice of Application dated 23 March 2020, and by the Fourth Defendant Rendall & Rittner Limited (“R&R”) by Notice of Application dated 5 February 2020; and in Claim F01CL461 (“the County Court Claim”) by its First Defendant Kyricoas Prodromou (“Mr Prodromou”) and its Second Defendant R&R by Notice of Application dated 8 November 2019. Those Defendants (“the Applying Defendants”) seek, by way of strike-out of the Particulars of Claim or reverse summary judgment, to summarily determine claims made against them by the Claimant in both Claims, Mr Paul Toner (“Mr Toner”).
The Claims arise from Mr. Toner's purchasing and being granted and subsequently holding a long lease (“the Lease”) of Flat No. 57 (formerly Plot No. 229), Courtyard Apartments, 3 Avantgarde Place, London E1 6GU (“the Flat”) which is on the fifth floor of a substantial block of flats (“the Building”). The Lease was dated and granted on 29 November 2013 and is made between Bishopsgate as Landlord, Avantgarde as Management Company and Mr Toner as Tenant, and followed on from an “off-plan” contract (“the Contract”) dated 21 December 2012 between them for Bishopsgate to build out the Building (including the Flat) and then for the Lease to be granted. THL is a high-level company (or at least an associated company at a higher corporate structure level) within the “Telford” group of companies which include Bishopsgate and, at least in the past, Avantgarde. The Contract itself followed a reservation agreement (“the Reservation Agreement”) dated 24 November 2012 between Mr Toner and (probably) THL, and negotiations between employees of THL and Mr Toner. Avantgarde appointed R&R as its Managing Agents of the estate (“the Estate”) which includes the Building from 2012 onwards and they employed Mr Prodromou as day concierge of the Building from 2013 to mid-2015 and then as Estates Manager, including of the Building, until September 2018. On 29 February 2016 Bishopsgate sold the freehold reversion to the Lease to the Sixth Defendant in the First Claim, Brigante Properties Limited (“Brigante”), whose parent company is the Fifth Defendant in the First Claim, Estates and Management Limited (“Estates”).
The High Court Claim was issued in the High Court (Queen's Bench Division) on 27 November 2019. The County Court Claim was issued, first in time, on 13 May 2019 (but see below) in the County Court at Central London. However, by Order of 28 October 2020 I transferred it to the High Court (Queen's Bench Division) under the statutory power conferred by section 41 of the County Courts Act 1984, it being clearly desirable (as was the position of all the parties) that these applications be dealt with altogether at this particular point.
Mr. Toner's claims, as set out in his Particulars of Claim in the two Claims are, in effect, that:
(a) He was induced to enter into the Contract and then the Lease by misrepresentations, made by THL, Bishopsgate and Avantgarde, and which were themselves fraudulent regarding (i) the balcony to the Flat (“the Balcony”) (ii) the service charges (“Service Charges”) which would it was anticipated would be levied under the Lease
(b) THL, Bishopsgate and Avantgarde, were each in breach of contract, and possibly duty of care, regarding the Balcony and numerous items of defective construction (“the Defects”) in the Building and the Flat, and then failures and delays regarding their remedying
(c) THL, Bishopsgate and Avantgarde have acted in breach of contract, and possibly duty of care, in relation to the amounts of Service Charge which have been demanded
(d) THL, Bishopsgate, Avantgarde and R&R each harassed Mr Toner through in particular (i) failing to remedy Defects (ii) failing to allow alteration of the Balcony) (iii) refusing to deal with his complaints and “stringing him along” (iv) the operating of a noisy Airconditioning Unit (“the Air Conditioning Unit”) (v) the conduct of Mr Prodromou
(e) R&R and Mr Prodromou have harassed Mr Toner in numerous ways including through (i) positive acts (ii) failing to deal with his complaints (iii) operating the Air Conditioning Unit
(f) R&R and Mr Prodromou are also liable in breach of duty of care regarding those (i) positive acts (ii) failing to deal with his complaints (iii) operating the Air Conditioning Unit
(g) R&R and Mr Prodromou have also actionably defamed Mr Toner to others by various verbal statements (“the Defamation Claims”)
(h) Accordingly, Mr Toner is entitled to recission of the Contract and the Lease and return of the purchase price (although I think that this remedy is no longer pursued by him) and to damages.
It is the existing claims which the Applying Defendants have sought to strike-out on various grounds or to contend for reverse summary judgment by asserting that they have no real prospect of success (or other compelling reason to go to trial). The other Defendants (Estates and Brigante) have not made any relevant applications and have simply observed).
Mr Toner has intimated some, in fact many, other claims during the course of the hearing, but it seems to me that they would require amendment of the relevant Particulars of Claim, and that this Judgment should deal with what is actually contained within Mr Toner's present statements of case. Any question of amendments can be left to the post-Judgment hearing.
B — The Hearing
Mr Toner has been acting in person throughout (with some assistance from a lay McKenzie friend) and has been faced with three opposing counsel (and a fourth counsel observing). I have therefore been concerned that he should have had a full opportunity to put his case; and I have had full regard to Civil Procedure Rule (“CPR”) 3.1A and the fact that he has not had legal representation. Nevertheless, and as made clear by the Supreme Court in Barton v Wright Hassall 2018 UKSC 12 at paragraph 18, Mr Toner is subject to the CPR and their Practice Directions (“PD”) as is any other litigant whether legally represented or acting in person.
In those circumstances, and in major part to assist Mr Toner, I conducted the hearing, as he had requested and notwithstanding the COVID-19 pandemic and consequent statutory restrictions, on a hybrid partly “face-to-face” (with Mr Toner and various counsel physically present in a courtroom) basis on 21 and 22 October 2020 and then 5 November 2020. This followed all parties having adduced substantial witness statements and exhibits (running to some four lever arch files, albeit with substantial duplication) and opening written submissions (counsel by Skeleton Arguments and Mr Toner by a Position Statement). During those days, I allowed in certain further written material including a substantial further witness statement from Mr Toner (and which effectively included various further written submissions).
As by the end of 5 November 2020 Mr Toner had not had quite the time for his oral submissions which I had intended, I gave him permission and time to put in further written submissions with counsel to respond in writing. Notwithstanding my granting him at his request a number of extensions of time, I ended up (notwithstanding opposition from the applying Defendants) making an “unless” direction that Mr Toner's permission to adduce further written submissions would cease (that being a lesser sanction than the dismissal sanction which Mr Toner had himself suggested that I should make) should he not provide his further written submissions by 4.30pm on Friday 4 December 2020. However, notwithstanding my having made clear that this was a time-limit with a specific sanction and that something would be much better than nothing, Mr Toner only sent his material over the weekend and on the following Monday (7 th December). That material comprised a very substantial further document described as a “witness statement” (and which was a mixture of evidence and submissions) and substantial exhibit.
I provisionally concluded that considering the overriding objective, CPR3.9 and applying a Denton v White 2014 1 WLR 3926 (“ Denton”) analysis to what appeared to be an informal application from relief from my “unless order” sanction, I should permit, but only permit, Mr Toner to rely upon certain...
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