25 September 2019
A timely reminder from the courts that this is a high bar to meet
Whilst the law surrounding summary judgment and strike out is well trodden and extensively documented, two recent cases involving the Simcocks Dispute Resolution team have served as a timely reminder from the Manx courts that summary judgment and strike out will not be a usual remedy and should be reserved for those cases which are effectively unarguable.
In particular, the court has been quick to criticize those applications it considered tactical or taken on purely technical terms.
Magee and Co Limited v Sartfell Education and Tourism Limited and Dr Peter Lillywhite
This case, from late 2018, involved allegedly negligent quantity surveying services provided by the Claimant. The Defendants had refused to pay for the quantity surveyor’s fees, resulting in the Claimant issuing proceedings in the Small Claims Procedure. This claim was defended and a counter claim issued for an alleged failure to properly quantify several materials required for the project.
The Claimant filed an application to strike out the counterclaim on the basis that:
- The Claimant did not have access to the structural engineer’s drawings at the point of preparation of the bill of quantities;
- Whilst the Claimant accepted he had omitted a costing for the Ancon channels and ties, these would be compensated for by a contingency sum in the bill of quantities, designed to cover such eventualities;
- The Claimant notified the Defendants that the sums for structural steelwork in particular would need to be checked upon receipt of updated structural drawings;
- The claim would fail on causation in any event because the original contract, for which the bill of quantities was prepared, was separated into multiple smaller contracts and the bill of quantities was therefore not reliable against the change in specification; and
- The claim would fail on causation in any event because a further quantity surveyor prepared an updated bill of quantities and therefore the responsibility for the figures contained therein would transfer to the newly instructed surveyor rather than the Claimant.
At an early stage in this application, the court was quick to reiterate that a mini trial is not desirable in these types of claim (paragraph 5), even in circumstances where it is necessary to conduct some level of enquiry into the facts to reach a decision. The court in this case permitted both parties the opportunity to submit a degree of additional documentary evidence, but remained of the view that such evidence fell short of the clear and unequivocal indication the court would need to find in favour of strike out or summary judgment. Such comments as the following made it clear to the parties that the court takes the view summary judgment or strike out is a high threshold to surmount which should generally be reserved for fairly straightforward and uncomplicated fact patterns:
“Mr Magee’s evidence was that the drawings and specifications changed a number of times. I interpose to suggest that such would be a matter of evidence after full disclosure” (paragraph 19)
“ Of course, the documentation is not so clear and self-contained such that at this stage one can say with certainty that information was properly communicated to the Defendants or other persons in the design team. Such would be a matter for evidence at trial following full disclosure” (paragraph 20)
Ultimately, the court decided that nothing in the evidence before them was so unequivocal that it would justify striking out the claim or granting summary judgment as the issues were so complex that they needed to be tested at trial and that the court needed the benefit of expert assistance to determine them.
Whilst this is no change to the substantive law, it serves to highlight the court’s robust approach to this type of application and the high bar that an applicant must surmount for summary judgment and/or a strike out application to be successful.
Jacqueline Karen Fergusson v Marks and Spencer PLC
In this very recent case, Simcocks found themselves defending two tactical applications made by the Defendant, who attempted to strike out and/or seek summary judgment against the Claimant’s claim for personal injury arising out of a slipping incident in their store. The claim had initially been pleaded in negligence and/or breach of statutory duty with reliance upon the evidential maxim of res ipsa locquitor, on the basis that the Claimant had not seen whether her fall was caused by water, a spillage in the store or a latent defect in the store’s floor surface.
The Defendant took issue with the pleading, as it argued that res ipsa loquitor did not apply and the facts pleaded were insufficient to found either a claim in negligence or a claim for breach of duty. Pre action requests had been made of the Defendant to try and establish the root cause of the accident, but the Defendant had failed to retain a copy of the RIDDOR report they had submitted to the relevant authority and were unable to furnish the Claimant with the CCTV covering the pertinent area of the store.
After the close of pleadings, the Claimant was able to trace the RIDDOR report with Health and Safety Department of DEFA and obtained a copy, which showed that the Defendant’s employee reported water on the floor in the vicinity of the accident as being the root cause. Following skeleton arguments, the Defendant filed a further application seeking an alternative remedy in case of the strike out application failing, which was for an unless order to compel the Claimant to amend the Particulars of Claim. The Claimant contested this application on the basis that she was unable to plead a fact outside of her knowledge and the contents of the RIDDOR report had not been prepared in her presence or with her knowledge.
After hearing argument, the court delivered a short ex tempore judgment which has subsequently been reported. This judgment serves to emphasise the key points the court will consider in these types of application: –
- Is the claim unarguable? – “I have noted the Defendant’s concern at the Claimant’s quoted apparent inability to say exactly what caused her foot to slip but I do not believe, in light of what is known of the circumstances of the case so far, that the difficulty of the Claimant to be precise makes her claim unarguable or having a poor chance of success. The Claimant does not know the cause of the slip but has firmly pleaded in respect of the alternate reasons set out in paragraph 3 of the particulars of claim.” (paragraph 15)
- Should the issues be determined at trial? – “The principles of res ipsa locquitor relate to the evidential burden in the precise circumstances of the facts of a particular case. It will no doubt be a matter of further discussion and argument if this case proceeds to trial when the court can reach findings of fact and from those findings consider the case specific circumstances which party needs to prove what. As I say, in my view, res ipsa locquitor is something that should be properly left to the trial judge.” (paragraph 21)
- Precision in pleadings should be proportionate to the issues – “I have noted the cases quoted by Mrs Corkish as to the need for precision in pleadings and the importance thereof …. I do not demure from the principles of such authorative case law. However the sufficiency of the pleadings will be case specific depending on the complexity of the matter at hand” (paragraph 20)
- The need for amendment to be proportionate – “It does not to my mind serve the overriding objective in the circumstances of this case bearing in mind the size of the claim to require further amendment” (paragraph 23)
In both cases, the court was heard during argument to express the view that it is disproportionate to consider strike out/summary judgment applications in circumstances where the quantum involved is relatively modest and that ultimately Deemster Doyle’s judgment in Interretire v HSBC  MLR N12 still rings true, in that strike out/summary judgment should only be reserved for those “plain and obvious” cases where, on the evidence, the claim or counterclaim is effectively unarguable. In testing the evidence, the court will consider the account of the party being challenged and accept it on face value unless it will be completely contradicted by available contemporaneous documents (paragraph 5 of Magee).
This should serve as a reminder to litigators that the tactical use of such applications in an effort to inhibit progress to an eventual trial will not be encouraged and that strike out/summary judgment should not be seen as a usual step between pleadings and disclosure.
Author: Emily Johnson