Scuderia Prestige Automobile Ltd v Mr Imran Malik
| Jurisdiction | England & Wales |
| Judge | Chief Master Shuman |
| Judgment Date | 14 October 2021 |
| Neutral Citation | [2021] EWHC 2744 (Ch) |
| Docket Number | Claim No: BL-2020-000650 |
| Year | 2021 |
| Court | Chancery Division |
[2021] EWHC 2744 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Chief Master Shuman
Claim No: BL-2020-000650
Stephen Brown (instructed by Taylor Hampton Solicitors Limited) for the Claimant/Applicant
Amit Gupta (instructed by Noble Solicitors) for the Defendant/Respondent
Approved Judgment
The claimant applies for summary judgment on its claim and for summary judgment and/or strike out on the defendant's counterclaim. The application is made by notice dated 5 February 2021.
The issue in the claim concerns whether the defendant contracted to part exchange a Ferrari 599 GTO with the claimant, or a Ferrari 599 GTB which had been modified to give the appearance of a GTO. The difference in value is significant. A Ferrari 599 GTO is a limited production super car; it was given a part exchange price of £265,000 by the claimant. In contrast the Ferrari 599 GTB is a standard production car with a part exchange price in the region of £75,000.
The claimant relies on two witness statements: one made by Daniel Taylor, solicitor and partner, dated 1 December 2020 and the other by Chengru Hu, director of the claimant, dated 30 November 2020. The defendant has made three witness statements dated 29 April 2020, 29 January 2021 and 25 February 2021. He also relies on a witness statement of Floren Apostolesscu, a security guard at the development in which he lives, dated 7 May 2020. The defendant was granted relief from sanctions at the hearing of the summary judgment application in order to be able to rely on his second and third statements and the statement of Mr Apostolesscu.
THE CLAIM
The claimant is a company registered in England and Wales and carries on business as a car dealership, specialising in supercars. The defendant is a private individual.
The claimant's case is that on 21 April 2020 the parties entered into an agreement whereby the claimant would part exchange its McLaren 675LT Spider, registration number CA11 MSO, (“the McLaren”), priced at £230,000 plus £35,000 in return for a Ferrari 599 GTO, registration number LX57 KRN. It is agreed that there was an express term of the agreement that the “deal is subject to a full inspection” of both cars. In fact the defendant owned a Ferrari 599 GTB. It is the defendant's case that the agreement was for the part exchange of his Ferrari 599 registration number LX57 KRN, he denies that it was for a Ferrari 599 GTO.
It is agreed that on 23 April 2020 at 2pm Mr Franzini, a sales representative, and Axel Clarke, a general manager, attended the underground car park adjacent to the defendant's flat and delivered the McLaren and collected the defendant's car. The £35,000 was transferred to the defendant's bank account. There is a factual issue as to how long the claimants' representatives spent with the defendant's car.
On 23 April 2020 a mechanic inspected the defendant's car at the claimant's showroom and realised that although the outward appearance of the car suggested that it might be a GTO it was a GTB. That evening Mr Franzini telephoned the defendant and demanded the return of the McLaren and the sum of £35,000.
The defendant admits this telephone call but denies that he was in breach of contract. The defendant's response to the claim is encapsulated in paragraph 36 of his defence and is twofold,
i) “the only fundamental and shared assumption was that the claimant bargained for and bought the Ferrari registration number LX57 KRN manufactured and registered in 2007” and
ii) “while [the defendant] was operating under the misapprehension that the Ferrari was a GTO in reliance upon the information he was provided by Belvue cars who sold it to him, the claimant relies not on any description or representation but its own inspection of the Ferrari by George Franzini, specialist car sales executive and a person said to be Mr Clarke the claimant's general manager relying on its expertise and experience in the brand and the models produced by that specific manufacturer.”
The claimant issued a claim seeking specific performance of the 21 April 2020 agreement. On 2 February 2021 the court granted permission to the claimant to amend its claim to plead in the alternative rescission for fraudulent misrepresentation or in the further alternative damages for breach of contract. The defendant had initially opposed the application but then consented to it being made and agreed for a costs order to be made against him.
The defendant counterclaims that the McLaren was not sold in a roadworthy condition. He relies on implied conditions pursuant to the Consumer Rights Act 2015 (the CRA), specifically sections 9, 11 and 23(2)(b). He seeks damages for breach of contract amounting to £16,850.07, including loss of enjoyment in the sum of £1,500.
The counterclaim is defended on a number of bases including that the defendant inspected the McLaren on 23 April 2020, his rights under the CRA are limited to a short time right to reject, which he did not exercise by 23 May 2020.
THE LAW
Pursuant to CPR 24.2 a court may give summary judgment on the whole of a claim or on a particular issue if:
“(a) it considers that—
(i) the claimant has no real prospect of succeeding on the claim or issue; or
(ii) the defendant has no real prospect of successfully defending the claim or issue; … and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
Both counsel referred me to Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). The principles applicable to summary judgment applications were set out by Lewison J, as he then was, and approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098. In the context of an application for reverse summary judgment Lewison J at paragraph 15 said,
“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 reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”
The evidential burden is on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. If credible evidence is adduced in support of the application then the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial. The standard of proof is not high.
It is no bar to summary judgment that the allegations are based on fraudulent misrepresentation. However, Mr Gupta cautions me that the court is faced with two competing sets of facts and the defendant's case is not inherently improbable. He referred me to Global Metals AG v Colony Capital Ltd [2020] EWHC 336, which itself, at paragraph 24,...
To continue reading
Request your trial