Ustimenko v Prescot Management Company Ltd.

Summary judgment is appropriate where the claimant has no realistic, non-fanciful prospect of success and there is no compelling reason for a trial. The same test applies to an application under CPR Part 24 and under section 8 of the Defamation Act 1996.

Issues which could and should have been raised in earlier proceedings may be an abuse of process, particularly where finality has already been reached. Abuse of civil proceedings is not itself a cause of action. Litigation pursued for a legitimate purpose will ordinarily fall within the statutory defence that the conduct was reasonable for the purposes of the Protection from Harassment Act 1997.

The claimant was a leaseholder in a block managed by the defendant management company. Following earlier service-charge proceedings before the County Court, Leasehold Valuation Tribunal and Lands Tribunal, he issued High Court proceedings containing claims concerning alleged breaches of lease, harassment, libel and defamation, abuse of County Court procedures, disrepair, damages and costs.

The defendant applied for summary judgment or strike-out, and for a civil restraint order. The claimant applied to dismiss the defendant's Part 20 counterclaim for service-charge arrears. The central issues were whether the pleaded claims had any realistic prospect of success, whether previously available issues were abusive or statute barred, and where the surviving claims should be determined.

1. The court dismissed the claims under the headings Breaches of Lease, Harassment, Libel and Defamations, and Abuse of Court Procedures. It struck out identified passages from the Background and Damages sections. The Disrepair claim was the only substantive claim to proceed.

2. Under CPR Parts 3.4 and 24, and section 8 of the Defamation Act 1996, the relevant test was whether the claim had a prospect of success that was not fanciful. The defendant succeeded where the pleaded case disclosed no reasonable grounds, was abusive, or had no real prospect of success.

3. Challenges to service-charge liability and alleged breaches of the Landlord and Tenant Act 1985 which could have been raised before the Leasehold Valuation Tribunal were too late. Raising them in later proceedings was an abuse of process, and some claims were also statute barred. Claims based on sections 21A and 21B were misconceived because those provisions were not in force.

4. The defamation and slander claims were out of time under section 4A of the Limitation Act. It was not necessary to decide the other issues, including meaning, reference, publication, justification or qualified privilege. The court refused to exclude the limitation period under section 32A of the Defamation Act 1996.

5. Abuse of civil proceedings is not an independent cause of action. Any abuse should be addressed by the court hearing the proceedings, including through its costs jurisdiction. The conduct of service-charge litigation for the legitimate purpose of recovering arrears would ordinarily be reasonable under section 1(3)(c) of the Protection from Harassment Act 1997. The alleged incidents and publications did not realistically amount to a statutory course of conduct.

6. The court declined to strike out the Part 20 counterclaim because conflicting evidence meant that the alleged arrears could not be determined summarily. The counterclaim and the surviving Disrepair claim were transferred to the County Court. The civil restraint order application was adjourned pending the claimant's application to set aside the County Court judgment and orders.

First-instance proceedings. The judgment describes earlier service-charge proceedings before the County Court, Leasehold Valuation Tribunal and Lands Tribunal, but no appeal from the present decision is stated.