McFaddens v Chandrasekaran

An appeal from summary judgment is ordinarily a review, not a rehearing, under the Civil Procedure Rules. Review engages the merits, while the degree of respect owed to the lower court varies with the nature of its decision.

Where the lower decision is multi-factorial and based on documents and inferences, the reviewing judge may consider all material that was before the lower court, including points not addressed in its judgment or expressly stated in the appeal grounds. The essential safeguard is a fair opportunity to answer points raised. Summary judgment remains available only where the defendant has no real prospect of successfully defending the claim.

McFaddens claimed solicitors’ fees from Chandrasekaran under a signed retainer relating to litigation against Deloitte and Touche Wealth Management Limited. Chandrasekaran alleged that the retainer was a sham and that an oral, success-based and equity-linked arrangement governed.

A master refused summary judgment. On the claimants’ appeal, Irwin J allowed the appeal and entered judgment for £516,426 including interest. The defendant appealed, arguing that the judge had conducted an unauthorised rehearing, relied on his delay in articulating his defence without fair notice, and wrongly refused late evidence. The central issue was the proper scope and fairness of a review under rule 52.11(1).

1. The Court of Appeal unanimously dismissed the appeal. The order for summary judgment remained in place, with costs subject to detailed assessment if not agreed. Permission to appeal to the House of Lords was refused.
2. Under rule 52.11(1) of the Civil Procedure Rules, an appeal is ordinarily limited to a review unless the court considers that the interests of justice require a rehearing. Following the guidance in EI Du Pont de Nemours & Co v ST Dupont [2003] EWCA Civ 1368, review engages the merits and requires appropriate respect for the lower court. The level of respect varies according to the nature of the decision and the lower court’s decision-making process.
3. The master’s decision was multi-factorial and depended on documentary material and inferences. The parties had placed before Irwin J all the material that had been before the master, including their skeleton arguments. The judge was therefore entitled to consider material not specifically mentioned in the master’s judgment or the notice of appeal. That exercise remained a review because it was directed to deciding whether the master’s conclusion was wrong.
4. Fairness required a procedure that enabled both sides to address the points relied upon. The judge himself raised the defendant’s delay in articulating his case and invited submissions, which the defendant answered without complaint. His consideration of that issue did not amount to an ambush or convert the review into a rehearing. The letters relied on by the defendant did not materially undermine the judge’s conclusion that his substantive case had been advanced late.
5. The judge was also entitled to refuse the defendant’s late application to adduce an email sent to Mr Koppel after circulation of the draft judgment. The delay had not been properly explained, and the document added little capable of salvaging the defence. Irwin J had correctly concluded that the master’s decision fell outside the permissible range of conclusions and that the defendant had no real prospect of successfully defending the fee claim.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 220, 26 February 2007. Appeal dismissed with costs; permission to appeal to the House of Lords refused.
• High Court of Justice, Queen’s Bench Division — Irwin J, 20 July 2006. Claimants’ appeal from the master allowed; the master’s order set aside and summary judgment entered for £516,426 including interest.
• Master Leslie — 29 November 2005. Claimants’ application for summary judgment refused.