Carr v Conlon

Summary judgment is inappropriate where a claim depends on allegations of perjury or other criminal conduct and the evidence requires an explanation from the person accused. The accused should have the opportunity to give that explanation at trial, even where the applicant’s material appears powerful. A claim based on notice or knowledge must be specifically pleaded in the statement of case under the relevant Practice Direction supplementing CPR Part 8. Unpleaded material cannot support summary judgment without permission to amend the pleading.

Mr Malcolm Carr sought permission to appeal, together with an extension of time, from HHJ Mackie QC’s order of 15 June 2006 dismissing his application for summary judgment against the partners of the former Bower Cotton firm.

The underlying action sought to set aside orders made in earlier proceedings concerning the loss of US$4 million transferred by the firm. Mr Carr alleged that those orders were nullities because Mr Paul Simms had given perjured evidence. He relied in part on a previously undisclosed NatWest schedule and other evidence. The central issue was whether that material justified summary judgment or required pleading and a trial.

Application refused. Lord Justice Parker agreed with HHJ Mackie QC and held as follows.

1. A claim based on the NatWest schedule had not been pleaded. Paragraph 16 of the Practice Direction supplementing CPR Part 8, referred to in paragraph 8.2(5), required a claim of notice or knowledge to be specifically pleaded in the statement of case. Permission to amend therefore had to be sought before reliance could be placed on that case.
2. Independently of the pleading point, allegations of criminal conduct such as perjury were unsuitable for determination on a summary application. The material relied on called for an explanation from Mr Simms. He was entitled to the opportunity to provide a proper explanation at trial.
3. Although the points raised by Mr Carr might be appropriate for cross-examination or submissions at trial, they could not justify summary judgment. A full appeal would have no real prospect of success.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division) — on 11 October 2006, [2006] EWCA Civ 1419, refused the application for permission to appeal.
• High Court of Justice, Chancery Division — HHJ Mackie QC dismissed the application for summary judgment by order dated 15 June 2006.