Premium Credit Ltd v Primary Care Management Solutions Ltd & Ors

Summary judgment is appropriate where the defendant has no real prospect of successfully defending the claim and no other reason justifies a trial or further disclosure. A speculative possibility that disclosure might reveal supporting evidence is insufficient.

Where written contracts allocate primary liability to the borrower and expressly state that an intermediary is not the lender’s agent, evidence of the intermediary’s general commercial interaction with the lender will not, without more, establish actual authority to make contrary representations. A contractual estoppel may also prevent the borrower from asserting that the intermediary’s statements affected the lender’s legal rights. The principle applies where the contract defines the intermediary’s role in relation to the contracting parties.

The claimant brought three materially identical claims against GP practices for sums due under written fixed-sum credit agreements. The agreements financed up-front fees payable to Primary Care People, which acted as an intermediary and service provider.

The defendants accepted that they were bound by the credit agreements but alleged that Primary Care People had represented that the claimant would have no recourse against them if payments were missed. They argued that Primary Care People had authority from the claimant to make those representations. The claimant applied for summary judgment, including against counterclaims based on the alleged misrepresentations.

1. Disposition. Summary judgment was granted for the claimant in all three claims for the sums claimed. Counterclaims based on the alleged misrepresentations were dismissed.
2. No real prospect of defence. The written Trading Agreement and Credit Agreements made clear that the defendants were the borrowers and remained primarily liable to the claimant. Primary Care People was not the claimant’s agent. The documentary evidence identified the Trading Agreement as governing the relationship between the claimant and Primary Care People.
3. The alleged representations were made by Primary Care People’s finance director. There was no real prospect of establishing that he or Primary Care People had actual authority from the claimant to make them. The evidence of close commercial interaction between the companies was consistent with Primary Care People acting as an independent service provider, broker, or agent of the defendants. It did not provide a proper basis for inferring a later grant of authority contrary to the written agreement.
4. A speculative possibility that disclosure might produce evidence of a different arrangement was insufficient. The defendants’ evidence did not give rise to a real prospect of a defence or establish any reason to postpone judgment for further disclosure or trial.
5. Contractual estoppel. The provision stating that Primary Care People was not the claimant’s agent bound the defendants on the contractual basis they had agreed. Applying the reasoning in Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd [2006] EWCA Civ 386; [2006] 2 Lloyd’s Rep 511, there was no sound distinction based on the alleged statement concerning a third party’s agency. Even if there had been a real prospect of proving that authority existed, the contractual estoppel would independently have supported summary judgment.