Concrete Foundations Ltd. v Family Housing Association

Summary judgment is appropriate only where the defendant has no real prospect of succeeding and there is no other compelling reason for a trial. The court must consider evidence reasonably expected to be available at trial, but must not conduct a mini-trial. Agency and unjust enrichment issues may require evidence about the parties’ dealings, reliance, credit and the scope of an agent’s authority. An agent’s actual authority to arrange work up to a particular amount does not establish actual or ostensible authority for the whole cost. Where reliance on an alleged representation is material, it must be established before ostensible authority can be determined.

Family Housing Association owned premises affected by subsidence. Its insurers and loss adjusters arranged for remedial underpinning works. Concrete Foundations Ltd accepted the tender and carried out the works. The Association paid 47 per cent of the cost but disputed liability for the remaining 53 per cent, which an insurer had refused to pay.

The Central London County Court dismissed the contractor’s application for summary judgment. It considered that the written contractual arrangements, the authority of the loss adjusters, the parties’ understanding and the unjust enrichment argument required further evidence. The contractor appealed, arguing that the correspondence established authority or, alternatively, unjust enrichment.

1. Appeal dismissed. The county court judge was correct that the matter was unsuitable for summary judgment.
2. Summary judgment requires the court to be satisfied that the defendant has no real prospect of success and that there is no other compelling reason for a trial. A real prospect is more than a false, fanciful or imaginary prospect. The court must consider evidence reasonably expected to be available at trial and must avoid conducting a mini-trial.
3. There was merit in the contention that Cunningham Lindsay had actual authority from the Association in relation to its 47 per cent apportionment. That authority could extend to appointing contractors for work up to that value. It did not necessarily establish actual or ostensible authority for any greater amount.
4. Ostensible authority could not be resolved without determining whether the contractor relied on the alleged representation. A representation must be made, intended to be acted upon and in fact acted upon. The evidence had to establish whether the contractor gave credit to the insurers, to the insurers and insured jointly, or to the Association alone.
5. The question whether Cunningham Lindsay could serve two masters also required evidence about the insurance position and its withholding from the Association of the insurer’s intention to deny liability. The agency issue and the unjust enrichment issue therefore could not safely be determined on the evidence then available. Discovery might also illuminate the relevant arrangements.

1. High Court (Queen’s Bench Division): dismissed the appeal and upheld the refusal of summary judgment.
2. Central London County Court: His Honour Judge Reynolds dismissed the contractor’s application for summary judgment on 30 June 2003.
3. Permission to appeal was initially refused on paper but was granted after an oral hearing by Mr Justice Evans-Lombe.