Petrou v Bertoncello & Ors

Strike-out and summary-judgment applications should not become mini-trials. Where factual disputes require resolution, or there are reasonable grounds to believe that fuller investigation may alter the evidence available at trial, the court should ordinarily allow the matter to proceed. The court may decide a short point of law summarily where the evidence is sufficient and the parties have had a proper opportunity to address it. In claims involving an unincorporated members’ club, the existence and scope of any duty of care by officers or members may depend on the club’s rules and all the circumstances, including the evidence about the responsibilities voluntarily undertaken.

The claimant suffered serious injuries in a paragliding collision at Dunstable Downs. He brought claims against the other pilot, the club chairman and safety officer, and the members of the unincorporated club represented by the chairman and safety officer. The claims alleged personal negligence, failures in supervision and organisation, and possible vicarious liability.

The defendants applied under CPR 3.4 and Part 24 to strike out or obtain summary judgment. The applications concerned whether the pleaded duties and potential vicarious liability were legally arguable. The central question was whether those issues could fairly be determined without a trial.

1. The applications were refused. The court held that the pleaded claims could not be determined without resolving factual disputes concerning the parties’ conduct, the responsibilities undertaken by the second and third defendants, the club’s arrangements and rules, and the evidence relevant to any duty of care and vicarious liability.
2. Under CPR 3.4 and Part 24, the court must distinguish a legally hopeless claim from one requiring factual investigation. Summary judgment is appropriate where, even if the offered facts were proved, no remedy could follow, or where the factual basis is fanciful or contradicted beyond reasonable question. It is inappropriate where deciding the issue would require a mini-trial.
3. The guidance in Three Rivers District Council v Governor & Company of the Bank of England (No.3), Easyair Ltd v Opal Telecom Ltd and Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Co 100 Ltd was treated as generally applicable. The court should consider the evidence available on the application and evidence reasonably expected at trial. It should hesitate where fuller investigation may add to or alter the evidence and affect the outcome.
4. A short issue of law or construction may nevertheless be decided summarily where the court has all necessary evidence and the parties have had an adequate opportunity to make submissions. This case did not fall within that category.
5. The parties accepted the principles stated in Vowles v Evans concerning duties within an unincorporated members’ club. The court did not finally determine the existence or scope of any such duties. It also expressed concern about the defendants’ late applications and non-compliance with the relevant practice direction, although the applications could legally be made at that stage.