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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Burleigh House (PTC) Ltd v Irwin Mitchell LLP [2021] EWHC 834 (QB) (12 April 2021) URL: https://www.bailii.org/ew/cases/EWHC/QB/2021/834.html Cite as: [2021] EWHC 834 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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BURLEIGH HOUSE (PTC) LIMITED |
Claimant |
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- and - |
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IRWIN MITCHELL LLP |
Defendant |
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Stephen Hackett (instructed by Griffin Law) for the Claimant
Simon Goldstone (instructed by Kennedys) for the Defendant
Hearing date: 10 March 2021
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Crown Copyright ©
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down will be deemed to be 10.30 am on 12 April 2021.
DEPUTY MASTER HILL QC:
Introduction
The factual background
(i) Clause 15.11: "You may not assign all or any part of the benefit of, or your rights and benefits under, the agreement of which these standard terms and condition [sic] form part"; and
(ii) Clause 17.3: "We accept instructions from you on the basis that services provided by [us] are provided solely for your benefit and we do not assume any liability to any person other than you in relation to the advice we give you…No person who is not a party to the agreement embodied in these standard terms and conditions and the relative covering letter(s) shall, in the absence of express provision to the contrary, have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms, but this does not affect any right or remedy of a third party which exists or is available other than under that Act".
The legal framework
(i) The court must consider whether the party defending the application has a "realistic" as opposed to a "fanciful" prospect of success (Swain v Hillman [2001] 1 All ER 91 at 92j, per Lord Woolf MR);
(ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: E D & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at [7-8], per Potter LJ;
(iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain;
(iv) This does not mean that the court must take at face value and without analysis everything asserted by a claimant: 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 at [10];
(v) 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) 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] F.S.R. 3;
(vii) It is not uncommon for an application under CPR 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;
(viii) 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 'no assignment' ground
The parties' submissions
Analysis and decision
The 'no duty' ground
The parties' submissions
Analysis and decision
The 'no terms' ground
The parties' submissions
Analysis and decision
Conclusion