Is it prudent to apply for summary judgment when there are alleged disputes of fact? I am grateful to my colleague Colm Nugent for sending me a copy of the judgment of Mr Justice Cooke in Price -v- Euro Car Parks Limited EWHC 3253 (QB) where the defendant was successful in an application for summary judgment. (769874_Richard_Huw_Price_v_Euro_Car_Parks_Limited_Judgment_Approved_18 08 15 (3))
The claimant was suing for damages for breach of an agreement that he had alleged he had entered into with the defendant in relation to the placing of gaming machines in car parks . The agreement comprised of a draft proposal, a cursory response that it was appropriate to continue investigations in an e-mail “okay, good luck”.
The defendant advised the claimant that they did not wish to proceed with the proposals. The claimant alleged that the defendant had broken a contract and issued proceedings. The claim was originally put at £78,817.67 but then later amended, discontinued and a second action issued which claimed £42 million.
WAS THERE A DISPUTE OF ORAL EVIDENCE?
14. If the dispute turned on an oral conflict of evidence, then it is self-evident that the matter would have to go to trial. It is clear, however, from the witness statement of Mr Price and from the case as put in the claimant’s skeleton argument that it does not. I refer in particular to paragraphs 27 to 40 of Mr Price’s first witness statement, and to paragraph 6 of the claimant’s skeleton. Despite saying, at paragraph 6.3 of the skeleton, that the court cannot properly determine the true meaning of the emails without hearing oral evidence of the parties and considering the background to these discussions, and that the issue of offer and acceptance is not susceptible to summary determination, the case put is said to be founded on an objective interpretation of the written exchanges between Mr Price and Mr Tucker. In particular Mr Fletcher of counsel, draws attention to the fact that any failure on the part of Mr Tucker to read any of the enclosures to the emails is neither here nor there and it is an objective interpretation of the exchanges which must take place in order to determine whether or not the contract has been concluded.
THE APPLICATION FOR SUMMARY JUDGMENT
The defendant’s application was made after the exchange of witness statements and after disclosure. The claimant argued that there were a number of triable issues
47. I am wholly unpersuaded by these arguments. It is clear, to my mind, that all that ECP ever did was to allow Mr Price to go ahead, at his own risk, in researching a business proposal which he put forward in the business plan in June 2012 (and which he also put forward in identical terms, so it seems, to two supermerkel chains)it. It was only if ECP considered the plan viable that there was any question of a trial at the Fiveways car park, or of rolling out a scheme, or sharing any profits that might subsequently result. There remained an enormous amount of work to be done and costing to be carried out, as well as arrangements made with third parties if any such scheme was to get off the ground at all.
48.The claimant’s case, in my judgment, does not accord with reality. There never was any acceptance of any offer ever made by Mr Price, let alone one on the terms of the In Principle Heads of Agreement. That document was in its terms too indefinite to constitute a binding agreement in any event. It was an ‘In Principle Heads of Agreement’ only and although that phrase can in different context’s mean different things and can in some circumstances give rise to a binding agreement as opposed to an unenforceable general understanding, it lacked any precision when it talked of a fully prepared viable plan, a fully completed operational system, a satisfactory trial or commercial success.
48.In short, I have come to the clear view that this claim is a try-on in circumstances where Mr Price had hoped that his proposal might be taken up and it might lead to something, but where, if his research did not lead to a decision by ECP to proceed, then he would be paid for the work he had actually done. He was clear, as is plain on the contemporary correspondence, that ECP was entitled to take a decision in relation to his proposal without giving any reason of doing so. There is no basis for reading into the emails a provision that the question of viability was to be decided by ECP on reasonable grounds or objective criteria, nor the courts should be called on to decide any such matter should there be any dispute about it and ECP decided not to proceed.
…51 “There is nothing in the exchanges, nor in Mr Price’s own evidence, which could lead the court to find that Mr Tucker ever agreed to the terms of the In Principle Heads of Agreement, nor to do anything more than permit Mr Price to put a proposal before him.”
THE DEFENDANT’S ARGUMENTS
52. I need not set out in extenso the various arguments made by ECP in its skeleton at paragraphs 27 onwards, but for the reasons I have given, in essence, accept them. At paragraph 37 of its skeleton, ECP refers to the argument that there has been encouragement and acquiescence to the Heads of Agreement by the provision of the facility of inspection of the Fiveways car park. At that paragraph it is said that this permission to allow Mr Price to carry out such an inspection was not indicative of a contract being concluded by acquiescence of assent. Mr Price had asked to walk around the car park a bit, to which he was given permission ‘of course’. In no way could this be related to the In Principle Heads of Agreement any more than the specific emails to which I have drawn attention of 24 March. I accept the argument put forward there in relation to that aspect of the matter.
53. Without going into any further detail, the points that are made in paragraphs 38 to 45 of ECP’s skeleton in relation to the obscurity and indefiniteness of the In Principle Heads of Agreement support the defendant’s argument that even if there had been agreement to its terms it would not assist the claimant in the claim he wishes to pursue.
54 For these reasons, I am entirely satisfied that the defendants are entitled to summary judgment in respect of the claim since the contract upon which the claimant relies is not one which can be established on the evidence.
GUIDANCE FROM COLM
In his e-mail to me Colm made the following observations:-
“Insofar as there is a motto (much less a moral) I think it is that even in cases where there is a lot at stake the courts are still prepared to examine carefully at an interlocutory stage whether the claim (or defence) is sustainable on the documentation presented; even if there is a residual dispute. Parties should not be cowed by alleged factual disputes, from striking out claims or defences which appear to be weak on their face”
- Disputes of fact in summary judgment applications: the appropriate test
- Assessing the evidence on a summary judgment application
- Summary judgment:conditional leave to defendant not a runner up prize.
- Sex and summary judgment
- Adjournment of summary judgment to hear novation argument: no vay
- Summary judgment and striking out: complex issues cannot be decided summarily
- Pleading, particularity, summary judgment and striking out.