Adibe v National Westminster Bank Plc

On an application for summary judgment, the court must assess all relevant evidence to determine what bargain the parties struck. A definite written agreement creates a strong presumption that it contains the whole bargain, but that presumption is rebuttable. Where there is a realistic prospect that a payment offer was accepted subject to an express condition, omission of that condition from a subsequent Tomlin order does not necessarily exclude it. The omission may leave a real prospect of establishing an antecedent or collateral agreement. A claim should not be summarily dismissed where the evidence discloses such a real prospect, although consequential amendments to the pleading may be required.

The claimant had brought several claims against the defendant bank arising from the handling of his accounts and an earlier debt-recovery claim. The Deputy Master dismissed all claims on the bank’s application for strike-out and summary judgment. On appeal, the claimant pursued only the issue whether the bank had agreed, as part of a compromise, to mark his credit records as settled after payment of £3,000.

The compromise was recorded in a Tomlin order which contained no term concerning the credit records. The Deputy Master found that there was a real prospect that the claimant had made, and the bank had accepted, a conditional offer involving that term, but concluded that the signed Tomlin order contained the entire agreement. The central issue was whether the omission from the Tomlin order necessarily defeated the possible collateral or partly oral agreement.

1. The appeal was allowed on the limited issue pursued, and permission to appeal was granted. The case was to proceed subject to consequential amendments to the particulars of claim.

2. The Deputy Master’s factual assessment was not disturbed. His finding that there was a real prospect of establishing that the claimant’s £3,000 offer was conditional upon the credit records being marked as settled was supported by the contemporaneous attendance note and the surrounding evidence.

3. A written agreement gives rise to a strong presumption that it contains all the terms of the parties’ bargain, as explained in Gillespie Bros v Cheney, Eggar & Co [1896] 2 QB 59. The presumption is not conclusive. An antecedent express stipulation may remain contractually effective if the parties intended it to continue alongside the written agreement.

4. The court must consider the evidence from start to finish to determine the bargain actually struck, following Evans and Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078. The email enclosing the Tomlin order and the claimant’s signature were relevant to whether the document was intended to contain the entire agreement, but they did not conclusively eliminate the possibility of a separate conditional agreement on the evidence accepted for summary-judgment purposes.

5. If the claimant’s offer was accepted on the stipulated condition, the bank could not retain the benefit of the compromise while avoiding that condition. There was therefore a real prospect of establishing a collateral contract, and summary dismissal was inappropriate.

• High Court (Chancery Division): The appeal from the Deputy Master’s decision was allowed on the limited issue concerning the alleged agreement to mark the claimant’s credit records as settled. Consequential amendments to the particulars of claim were required.
• Deputy Master Henderson: On 16 November 2016, dismissed the claimant’s claims on the defendant’s applications for strike-out and summary judgment.