Steven John Williams v John Adrian Simm
| Jurisdiction | England & Wales |
| Judge | Cawson |
| Judgment Date | 27 January 2021 |
| Neutral Citation | [2021] EWHC 121 (Ch) |
| Docket Number | Case No: PT-2020-MAN-000048 |
| Court | Chancery Division |
[2021] EWHC 121 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS AT MANCHESTER
PROPERTY TRUSTS AND PROBATE LIST
Manchester Civil Justice Centre
1 Bridge Street West, Manchester M60 9DJ
HIS HONOUR JUDGE Cawson QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: PT-2020-MAN-000048
Oliver Wooding (instructed by Clarke Willmott LLP) for the Claimants
The Defendants in person
Hearing date: 14 January 2020
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.
His Honour Judge Cawson QC:
Introduction
In these proceedings the Claimants, as joint fixed charge receivers appointed pursuant to the terms of a legal charge dated 11 October 2016 and made between the Defendants (1) and LSC Finance Ltd (“ LSC”) (2) (“ the Legal Charge”), seek declaratory relief as to the validity of the Legal Charge and their appointment as fixed charge receivers, and other relief to enable them to carry out their functions as fixed charge receivers.
The proceedings were commenced by way of Part 8 Claim Form on 15 April 2020, but on 22 September 2020 District Judge Carter ordered that the claim be “transferred to Part 7 and allocated to the Multi-Track”, and gave directions for the filing and service of statements of case. These statements of case, comprising Particulars of Claim, a Defence and Counterclaim, a Reply and Defence to Counterclaim, and a Reply to Defence to Counterclaim were subsequently filed and served.
I had before me on 14 January 2021:
3.1. An application by the Claimants dated 24 December 2020 (“ the SJ Application”) seeking an order pursuant to CPR 3.4(2)(a) striking out the Defence and Counterclaim, alternatively seeking summary judgment pursuant to CPR 24.2, and judgment in favour of the Claimants on the claim and counterclaim as set out in a draft order attached to the application; and
3.2. An application by the Defendants dated 11 January 2020 (“ the Defendants' Application”) seeking an order that the SJ Application itself be struck out pursuant to CPR 3.4 and/or that summary judgment be granted pursuant to CPR 24.2, alternatively that the Claimants be required to produce a further witness statement: “to comply with the relevant CPR Rules and in particular state the facts and law to properly sustain the summary application so that the Defendants can clearly understand the case they have to meet.”
The SJ Application was supported by the third witness statement of Ellen Yeates dated 24 December 2020 (“ Yeates 3”) and was initially listed to be heard before His Honour Judge Hodge QC on 4 January 2021, the date fixed for the hearing of a further Costs and Case Management Conference as directed by the Order of District Judge Carter dated 22 September 2020. However, notice was not provided to the parties as to the date of this hearing until 30 December 2021, and the parties sensibly agreed, amongst agreeing other directions, that the SJ Application should be relisted to be heard on 14 January 2021. On 4 January 2021, His Honour Judge Hodge QC made an order to this effect.
Thereafter, on 11 January 2021, the Defendants issued the Defendants' Application, which was also made returnable on 14 January 2021. The Defendants' Application is supported by the second witness statement of the First Defendant dated 11 January 2021 (“ JA Simm 2”). This latter witness statement takes a number of procedural points in relation to the SJ Application, and also deals with various defences to the proceedings advanced by the Defendants as pleaded in their Defence and Counterclaim, and Reply to Defence to Counterclaim.
Given that the Defendants, by the Defendants' Application, took a number of procedural objections to the SJ Application, I considered it appropriate at the hearing on 14 January 2021 to first determine whether the SJ Application ought to proceed on its merits in the light of those procedural objections, or whether I ought to strike out, dismiss or adjourn it in the light of the procedural issues taken by the Defendants' Application as developed and expanded upon in the course of submissions.
For reasons set out in an oral judgment given on 14 January 2021 (as supplemented by further observations made shortly prior to the short adjournment on that day), I declined to strike out, dismiss or adjourn the SJ Application, and proceeded to hear the SJ Application on it substantive merits.
In this judgment, I propose to
8.1. Summarise my reasons for not acceding to the request to strike out, dismiss or adjourn the SJ Application on the procedural grounds advanced;
8.2. Set out the background to the proceedings;
8.3. Set out the appropriate test to apply on an application to strike out, and for summary judgement;
8.4. Identify the various defences raised by the Defendants and said by them to provide them with a real prospect of successfully defending the proceedings on their merits; and
8.5. Set out my conclusions and decision as to whether the defences raised do provide the Defendants with a real prospect of successfully defending the proceedings on their merits.
The Claimants appeared by Oliver Wooding of Counsel. The Defendants appeared in person, with the Second Defendant conducting the advocacy on their behalf. As demonstrated by the contents of JA Simm 2 and the Skeleton Argument prepared by the Defendants for the hearing with their impressive citation of provisions of the CPR and case law, and by the quality of the advocacy of the Second Defendant, the Defendants have a sophisticated grasp of the issues involved in the present case. I am grateful to both Mr Wooding and the Second Defendant for the assistance that they provided to me in identifying and dealing with the issues that arise for consideration.
The Defendants' Application and the procedural objections taken by the Defendants
By the Defendants' Application and the evidence in support (JA Simm 2), and as expanded upon in the course of submissions, the Defendants took a number of procedural objections in respect of the SJ Application, namely that:
10.1. The Claimants had failed to comply with CPR 24.4(3)(b) and 24 PD para 2(3)(a) because the Defendants had been given insufficient notice of the issues to be determined, and the Claimants had failed sufficiently to identify the points of law that they relied upon;
10.2. The Claimants had failed to comply with 24 PD para 2(3)(b) in that neither the SJ Application nor the evidence in support of it stated that the SJ Application was made because the Claimants believed that on the evidence the Defendants had no real prospect of successfully defending the claim or the relevant issues, and failed state that the Claimants knew of no other reason why the disposal of the claim or relevant issues should await trial;
10.3. The Claimants had failed to comply with 24 PD para 2(5) in that the SJ Application had not drawn the Defendant's attention to CPR 24.5(1) requiring the Defendants to file evidence 7 days prior to the hearing.
The Defendants further relied upon the fact that the Claimants' Skeleton Argument had been served late, and that the final electronic bundle for the hearing had only been provided late the previous evening.
As to the issues raised, I held that:
12.1. The SJ Application, and the evidence in support of it, had sufficiently identified the issues to be decided on the SJ Application, Yeates 3 having, in particular, identified the relevant issues by reference to the position taken by the Claimant in their Reply and Defence to Counterclaim, and JA Simms 2 having demonstrated the Defendants' understanding as to, and ability to deal with the relevant issues;
12.2. Whilst there had been a breach of 24 PD para 2(3)(a), this had been rectified by a fourth witness statement made by Ellen Yeates on 12 January 2021, cf. Thomas Cook v Louis Hotels SA [2013] EWHC 2139 (QB) at [38]. No prejudice had been demonstrated, and I considered that any defect could and should be waived.
12.3. So far as 24 PD para 2(5) was concerned, the SJ Application had been adjourned on 4 January 2021 without any objection being taken, the Claimants' Solicitors had advised the Defendants as the requirements of CPR 24.5(3) in an email sent on 9 January 2021, and the Defendants had filed and served JA Simm 2, which although formally made in support of the Defendants' Application, in practice set out the matters that the Defendants intended to rely upon in opposition to the SJ Application. Again, I could not see that any significant prejudice been occasioned, and I consider that any procedural defect could and should be waived.
12.4. As to late service of the Skeleton Argument and the electronic hearing bundle, I considered that the Defendants had suffered no discernible prejudice, and that this ought not provide a reason for not proceeding to hear the SJ Application, the Defendants being well on top of the relevant documentation and the issues that arose.
Further, I held that it was not open to the Defendants to apply pursuant to CPR 3.4(2)(a) to strike out the SJ Application, or to seek summary judgment in respect of it pursuant to CPR 24.2. The SJ Application and the evidence in support of it is not a “statement of case” within the meaning of CPR 3.4(2(a),...
To continue reading
Request your trial