Green (t/a Green Denman & Co) v Skandia Life Assurance Company Ltd.

On a defendant’s application for summary judgment, the court must not conduct a mini-trial. The claim should be allowed to proceed where disputed facts or developing law make it inappropriate to conclude that it has no real prospect of success.

Contractual terms are implied only where the established requirements of necessity, obviousness, reasonableness, clear expression and consistency with express terms are satisfied. An insurance company’s contract with an intermediary does not ordinarily restrict its freedom to pursue its own commercial interests or to accept business on terms of its choosing.

Unlawful means conspiracy requires conduct aimed or directed at the claimant. Knowledge that conduct will cause loss is insufficient without an intention to injure. A claim under section 62 of the Financial Services Act 1986 was unavailable to an intermediary who was not an investor in the relevant pension scheme.

Mr Kenneth Green, an independent financial adviser, claimed that Skandia Life Assurance Company Ltd had caused his client, Imagination Ltd, to transfer an occupational pension scheme from commission-based arrangements with Skandia Life to nil-commission arrangements with Professional Life, another group company.

He alleged breach of implied contractual terms, unlawful means conspiracy, unlawful interference, breach of section 62 of the Financial Services Act 1986, wrongful clawback of commission and entitlement to a quantum meruit.

Skandia Life applied under CPR Part 24 for summary judgment. The central questions were whether the pleaded claims had any real prospect of success and whether disputed factual and developing legal issues required a trial.

1. Summary judgment principles. The application was determined by asking whether Mr Green had any real prospect of success. The court must not conduct a mini-trial on disputed documents. Summary judgment may nevertheless be given where a claim is bound to fail as a matter of law, or where its factual basis can confidently be shown to be fanciful and without substance.
2. Implied terms. The pleaded term preventing Skandia Life from taking steps which might deprive Mr Green of future or indemnity commission was inconsistent with the express contractual right to refuse business. It was neither necessary nor obvious. The client remained free to discontinue policies, and Skandia Life was entitled to pursue its own commercial interests. The claims based on that term therefore had no real prospect of success.
3. The proposed duty to provide information about new products and to co-operate in good faith remained arguable at summary judgment. Its scope could depend on the practical relationship between an insurer and an independent financial adviser. Any such duty could not require Skandia Life to subordinate its own commercial interests or disregard the client’s wishes.
4. The alleged regulatory breaches concerned dealings with Imagination, not with Mr Green, and the relevant requirements protected clients rather than intermediaries. They could not support an implied contractual term owed to Mr Green.
5. Economic torts. Following Douglas v Hello! Ltd (No 3), [2005] EWCA Civ 595, [2006] QB 125, the intention required for unlawful means conspiracy and unlawful interference involved conduct aimed or directed at the claimant. The pleaded case alleged only knowledge that the transfer would cause loss, not that depriving Mr Green of commission was an object or necessary means of the defendants’ conduct. The claims therefore failed on the law then applicable, although they were stayed pending the appeal in Douglas.
6. Section 62 claim. Mr Green was not an investor in the pension scheme and did not sue in the capacity of an investor. He therefore was not a private investor under section 62A and could not bring the statutory claim.
7. The clawback claim was unsustainable as a separate cause of action because the Indemnity Conditions permitted recoupment where premiums were discontinued within two years. The quantum meruit claim could not be dismissed without fuller consideration of the applicable principles.

Judgment was given for Skandia Life on the claims for breach of implied terms, apart from the arguable EP4 information complaint, the section 62 claim and the pleaded clawback claim. The conspiracy and unlawful interference claims were to be stayed, subject to submissions on the appropriate order.

First-instance decision. No prior or subsequent appellate decision is stated in the judgment.