Mr Robert David MacKenzie v AA Plc
| Jurisdiction | England & Wales |
| Judge | Anthony Metzer |
| Judgment Date | 25 June 2021 |
| Neutral Citation | [2021] EWHC 1605 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-003081 |
| Date | 25 June 2021 |
[2021] EWHC 1605 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Anthony Metzer QC
(Sitting as Deputy Judge of the High Court)
Case No: QB-2019-003081
Gavin Mansfield QC and Hugh Jackson (instructed by Shakespeare Martineau LLP) for the Claimant
James Laddie QC and Andrew Smith (instructed by Reynolds Porter Chamberlain LLP) for the Defendants
Hearing dates: 10–12 March 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Anthony Metzer QC
JUDGMENT OF THE DEFENDANTS' APPLICATION FOR SUMMARY JUDGMENT/ OR TO STRIKE OUT OF PARTS OF THE CLAIMANT'S CLAIM
Anthony Metzer QC:
The Applications
There are three outstanding applications brought by the Defendant all referred to in the third witness statement of Simon Goldring dated 7 May 2020: A234–270, who will be referred to in this Judgment as the Applicants (“the As”), against the Claimant, here referred to as the Respondents for summary judgment and/or strike out of parts of the Respondent's (“R's”) claim; a fourth was compromised between the parties in the course of the hearing and need not be referred to further, though of course will from part of the Final Order. I have referred to “the As” throughout for convenience, even where it would only be more accurately referable to one of the Applicants.
I was provided with comprehensive and very helpful skeleton arguments, oral submissions and written closing submissions with flow charts and I would like to record my thanks for the considerable assistance I received from the erudite and clearly focussed submissions from both sides.
The three applications for SJ/strike-out are as follows:
a) The claim as to loss of benefits ancillary to R's employment and his entitlement to participation in a discretionary annual bonus (“The First Application”);
b) Whether the MacKenzie (“MVP”) shares have any value when assessing R's damages (“The Second Application”);
c) The claim for damages for personal injury (“The Third Application”).
I propose to deal with the Applications in this order. It is acknowledged and accepted by the As that even if they are successful in all three applications, it does not dispose of the claim in total which will continue to trial as a claim for damages for wrongful dismissal. It is also rightly accepted that I shall assume for the purposes of these applications that the R's claim for wrongful dismissal succeeds, although I recognise that the A's case is that this claim is strongly disputed in respect of the matters which proceed to trial.
The legal principles applicable to summary judgment and strike-out
The legal principles relating to SJ and strike-out are familiar and agreed. In summary, CPR 24.2 provides that the court may give summary judgment on a claim or issue if it considers that the C has no real prospect of succeeding on the claim or issue; and there is no other compelling reason why the case or issue should be disposed of at trial.
The principles applicable in the determination of an application for summary judgment are well settled:
a) An application for summary judgment is not a summary trial; the Court will consider the merits of the R's case only to the extent necessary to determine whether it has sufficient merit to proceed to trial. [WB 24.2.3 to 24.2.5]. Per Lord Wolf in Swain v Hillman [2001] C.P. Rep. 16:
“It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and, I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know this as soon as possible … Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. As Mr Bidder put it in his submissions, the proper disposal of an issue under Part 24 does not involve the judge conducting a mini trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily.”
b) It is for the As to satisfy the Court that the R has “no real prospect” of succeeding and that there is “no other compelling reason why the case or issue should be disposed of at a trial” and regard must be had to the overriding objective of dealing with cases justly:
“It is well established that in order to defeat an application for summary judgment it is enough for the defendant to show a prospect of success which is real in the sense of not being false, fanciful or imaginary. However, the burden on the defendant is at most an evidential one. The overall burden of proof rests on the claimant to establish, if it can, the negative proposition that the defendant has no real prospect of success (in the sense which I have mentioned) and that there is no other reason for a trial. Regard must also be had to the overriding objective of dealing with the case justly. The court should not hesitate to give summary judgment in a plain case, and if the case turns on a pure point of law, it may determine that point. However, the court has often been enjoined not to conduct a mini-trial on the documents, without discovery and oral evidence. As Lord Hope said in Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1 at 261B, the object of the rule is to deal with cases that are not fit for trial at all” — Per Henderson J. in Apvodedo NV v Collins [2008] EWHC 775 (Ch) at [32].
c) The procedure for summary judgment is designed for cases not fit for trial at all which was explained by Lord Hope in Three Rivers DC v Bank of England [2003] 2 AC 1; at paras 94 & 95:
“ 94 … I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is—what is to be the scope of that inquiry?”
95 I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”
d) The Part 24 procedure is designed “for the swift disposal of straightforward cases” and the Court should have in mind that there can be more difficulties in applying the “no real prospect of success” test on an application for summary judgment than in trying the case in its entirety: Per Mummery LJ in Doncaster Pharmaceuticals Group Ltd & ORS v The Bolton Pharmaceutical Company 100 Ltd: [2006] EWCA Civ 661 at paras. 4 & 5.
e) It is not appropriate summarily to determine a claim in an area of developing jurisprudence since decisions as to novel points of law should be based on actual findings of fact: Equitable Life Assurance Society v Ernst & Young [2003] EWCA Civ 1114 at 40.
f) In an application for summary judgment the focus is on the evidence which is, or is likely to be, available at trial, per Aldous LJ in Royal Brompton Hospital NHS Trust v Hammond No. 5: [2001] 1 WLR 1001 at 108.
Issues of causation (and remoteness), which are central matters in this application, are often fact-sensitive. The As rightly recognise that it is therefore only in exceptional circumstances that the Court should accede to an application for summary dismissal of a claim where these issues arise: Mulvenna v Royal Bank of Scotland plc [2004] C.P. Rep. 8 per Sir Anthony Evans at [29].
The As therefore recognise that where there is a factual dispute, that is (absent clear documentary evidence) a good reason for dismissing an application for...
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...the way least burdensome to it. This was confirmed by Anthony Metzer QC (sitting as a Deputy High Court Judge) in MacKenzie v AA Ltd [2021] EWHC 1605 (QB), who held at [33] ''The employer, as here, would be contractually obliged to pay the loss of salary as damages for the wrongful dismissa......