Landfast (Anglia) Ltd. v Cameron Taylor One Ltd.

On an application for summary judgment, a claim should proceed if it has a real, even weak, prospect of success. The court must avoid conducting a mini-trial or stifling a claim merely because it appears unlikely to succeed. The assessment must be based on the particular facts and the pleadings as they stand, while allowing for straightforward clarification where the real issues are apparent. An assignee may arguably recover loss suffered by the assignee in respect of an assigned cause of action, even where the assignor suffered no corresponding loss. Claims for apparently excessive financing or professional costs should not be summarily dismissed where the evidence may establish that the expenditure was incurred reasonably to mitigate loss.

Landfast Anglia Limited brought claims against Cameron Taylor One Limited, consulting engineers and building surveyors, arising from allegedly negligent advice concerning drainage, ground conditions and construction methods for a residential development. Three heads of loss were challenged on an application under Civil Procedure Rules 1998, Part 24: a lost opportunity to acquire the site more cheaply, diminution in value, and additional financing, management and professional costs.

The defendant contended that the pleaded losses had no realistic prospect of recovery. The central issue was whether any of the three heads should be disposed of summarily before trial.

1. Application dismissed. The claimant’s three challenged heads of loss were sufficiently arguable to proceed to trial.
2. Under Civil Procedure Rules 1998, Part 24, the question is whether the claim has a real prospect of success. The court must not conduct a mini-trial. A weak claim should proceed if it nevertheless has a real chance of succeeding, and each application must be assessed by reference to the particular facts.
3. The pleadings remain the framework for the trial and are not automatically supplemented by witness statements. However, the court should avoid an overtechnical syntactical analysis where a simple amendment could clarify an evident issue.
4. As to the lost-opportunity claim, the assignment was not challenged. Following Technotrade Ltd v Larkstore [2006] BLR 345, it was at least arguable that what had been assigned was a cause of action, including its damages remedy, and that the assignee could claim loss suffered by it even though the assignor had suffered no corresponding loss.
5. The diminution-in-value claim depended on whether a breach could arguably have occurred during the short period between the defendant’s engagement and the purchase contract. That issue was weak but just arguable and required evidence at trial.
6. Additional financing and associated costs were in principle arguable. Although financing at an apparent rate of 36 per cent per annum or more appeared excessive, the claimant relied on mitigation and the need to avoid delay. Whether the financing, management time and solicitors’ costs were reasonable could not be determined summarily.