Ames & Anor v Davies & Ors

Applications for strike-out and summary judgment should be determined by applying the relevant procedural tests to the pleaded case and evidence before the court. An earlier ex parte decision on interim injunctive relief does not ordinarily determine a later application addressing the merits under different tests and after fuller argument. A contractual obligation to use best endeavours to procure documents, where the agreement does not require their delivery, is not ordinarily a repudiatory breach going to the root of the contract. A claimant who knows of the alleged breach and continues to perform and affirm the agreement may lose the right to terminate or rescind. Summary judgment is appropriate where the pleaded misrepresentation case is contradicted by contemporaneous documents, inadequately pleaded, and has no realistic prospect of success.

David and Carol Ames had agreed by a Tomlin Order and Settlement Agreement to pay the Davies Group £1.3 million by 2 September 2015. They issued proceedings alleging that the agreement had been induced by fraudulent misrepresentations concerning documents relevant to separate litigation, or that the Davies Group had repudiated the agreement by failing to use best endeavours to procure documents. They also alleged breach of confidentiality and sought delivery up of documents.

The Davies Group, save for the Twelfth Defendant, applied to strike out the claims or obtain summary judgment. The Claimants relied on factual disputes and the need for a trial. An earlier ex parte application for interim injunctive relief had been dismissed by Mr Justice Phillips. The central issues were whether that earlier decision was determinative, whether the claims were abusive, and whether any claim had a realistic prospect of success or raised a compelling reason for trial.

1. The applications succeeded. The court entered summary judgment for the Davies Group on the whole claim. The delivery-up claim was also struck out under CPR 3.4(2).
2. The earlier ex parte decision did not bind the court under stare decisis. It concerned discretionary interim injunctive relief and the threshold of a sufficiently good arguable case. The present application required assessment of the pleaded case and evidence under the different tests for strike-out and summary judgment, including whether there was a realistic prospect of success and any compelling reason for trial.
3. The confidentiality claim was inadequately particularised and unsupported by evidence. There was no viable basis for inferring that any Defendant had disclosed confidential information or that the agreement had been repudiated.
4. The delivery-up claim was bound to fail. Clause 29 required best endeavours to procure documentation but did not impose a contractual obligation to deliver documents. It contemplated possible voluntary disclosure in return for an additional payment. Reliance on CPR 31.17 and a Norwich Pharmacal order could not cure the claim as pleaded, particularly against a non-party.
5. The best-endeavours claim had no real prospect of success. Even if there had been a breach, it would not have been sufficiently serious to go to the root of the Settlement Agreement or entitle the Claimants to terminate it. In any event, the Claimants had affirmed the agreement by January 2015 at the latest, continued to seek performance, and confirmed that monies were being sent under the agreement. Their purported acceptance of repudiation occurred after the payment obligation had fallen due.
6. The misrepresentation claim was inadequately pleaded and contradicted by the contemporaneous correspondence and the Claimants’ own evidence. The documents showed that the Claimants understood that Mr Corney had not seen or possessed the relevant documents, yet entered into the agreement without any contractual entitlement to receive them. The alleged representations therefore did not induce the agreement. The right to rescind had also been lost by delay and affirmation.
7. There was no compelling reason for a trial. A desire to investigate the truth or expose the wider background could not overcome the absence of a viable pleaded case and the documentary evidence showing that further factual investigation would not affect the outcome.