Khouj v Acropolis Capital PartnersLtd & Anor

Summary judgment is inappropriate where the claim raises substantial factual disputes and the applicable legal issues depend on facts likely to emerge at trial. The court must assess whether the claimant has a realistic, rather than fanciful, prospect of success without conducting a mini-trial or resolving disputed credibility issues. Difficult questions of law may also be unsuitable for interlocutory determination where the nature of the underlying relationship remains uncertain. Where circumstances require investigation, they may provide a compelling reason for trial. A pleading alleging agency need not be struck out merely because it lacks the contractual particulars ordinarily required for an agreement, particularly where the alleged agency may arise without an enforceable contract and the defendant understands the case.

The claimant, administrator of the estate of a deceased Saudi national, alleged that the defendant companies had acted as his agents in relation to investments, property and associated financial administration. He sought inspection and copying of documents, asserting fiduciary duties to account and preserve records.

The defendants denied any agency relationship and applied for summary judgment under CPR 24.2, alternatively seeking strike-out for inadequate particulars of the alleged agreement. The claim had initially been issued under Part 8 but was transferred to Part 7 because it required evidence. The central issues were whether the pleaded agency claim had a real prospect of success and whether the pleading was sufficiently particularised to proceed to trial.

1. Applications refused. The defendants failed to show that the claimant had no real prospect of success. The claim involved disputed facts concerning the defendants’ dealings with the deceased, the ownership and management of assets, the defendants’ instructions and the nature of any agency relationship.
2. The court adopted the established summary-judgment approach summarised in Arcadia, including the need to distinguish a realistic prospect from a fanciful one, avoid a mini-trial, avoid resolving conflicts of fact ordinarily reserved for trial, and consider evidence reasonably expected to be available at trial. The court should be cautious about deciding difficult legal questions at an interlocutory stage where the facts may determine their proper application.
3. The alleged duty to disclose records could not appropriately be defined before the nature of any agency relationship had been established. Agency relationships may differ, and the claimant had a reasonable case that relevant obligations might exist. The absence of a written retainer or client file did not establish that no agency relationship existed.
4. There was also a compelling reason for trial under CPR 24.2(b). The incomplete and unclear evidence, the absence of important contemporaneous material, alleged inconsistencies and possible issues concerning the defendants’ relationship with other interested persons required investigation.
5. The strike-out application also failed. The traditional requirement to particularise who, when, where and how an agreement was made applies to contractual relationships. The pleaded case alleged agency arising from a series of circumstances over a stated period and agency need not depend upon a valid enforceable contract. Further particularity was desirable, but amendment could sensibly follow disclosure. The defendants understood the case and suffered no present forensic disadvantage.

Not stated in the judgment.