Adams & Ors v Atlas International Property Services Ltd & Ors

Where claimants pursue contract claims against an agent and an undisclosed principal, and the claims cannot both succeed, the election between defendants must be made before judgment is given. It cannot be postponed until after the judgment has been handed down or until a draft judgment has been circulated. A draft judgment is not an opportunity to reopen contentious matters or make a commercial election after the court has decided the issues.

The judgment concerned a procedural issue arising after trial but before judgment on the underlying claims. The claimants had retained Spanish legal advisers and advanced alternative contractual claims against the individual lawyer and the company said to be his principal. They contended that, if both claims could not succeed, they could elect between defendants after receiving the substantive judgment or its draft. The defendants argued that the election had to be made earlier. The issue was when the claimants had to elect.

1. Election required before judgment. The claims against the individual agent and the alleged undisclosed principal could not both succeed. The claimants therefore had to identify the defendant against whom they sought judgment before the court determined the claims. Once the judge had decided whether each contractual claim succeeded or failed, the claimants could not invite the court to change that decision.
2. No election after hand-down. The claimants could not defer the election until the period between hand-down of the substantive judgment and the drawing up of the consequential order. The court would already have decided both contractual issues.
3. No election on receipt of a draft. The claimants also could not elect after receiving a draft judgment. The process of producing judgments in draft is not intended to enable parties to reopen contentious matters, applying the principle stated in Robinson v Fernsby [2003] EWCA Civ 1820 at [92].
4. The judge considered that the substantive judgment would not materially inform the claimants’ commercial choice between defendants. Unless notified otherwise, he would proceed on the basis that the primary contractual claim was against the individual lawyer, while allowing a short period for the claimants to notify their considered position.