Capita Pension Trustees Ltd & Anor v Sedgwick Financial Services Ltd & Ors

Strike out is governed by the applicable procedural test: whether the statement of case discloses no reasonable grounds for bringing or defending the claim. The court need not find an extreme case or be satisfied that the claim is bound to fail. A defective pleading should be considered in its factual context, and amendment may be required where the case can be stated coherently.

Summary judgment requires a realistic, rather than fanciful, prospect of success and no other compelling reason for trial. The court must avoid a mini-trial and should ordinarily leave disputed evidence, witness credibility and the scope of a retainer for trial. A concurrent tortious claim is a separate cause of action, even if its scope mirrors the contractual duty.

The defendants brought a Part 20 contribution or indemnity claim against solicitors involved in the administration and documentation of a pension scheme. They alleged that the solicitors had been retained to advise on equalisation and had failed to advise on the formalities required to amend the scheme.

The solicitors applied to strike out the relevant paragraphs of the additional claim under CPR 3.4(2), or alternatively for summary judgment under CPR 24.2. The central issues were whether the pleading disclosed reasonable grounds, whether the alleged retainer and duties had been sufficiently pleaded, and whether the evidence established that the claim had no realistic prospect of success.

1. The application for strike out and summary judgment was dismissed. The defendants were required to amend their additional claim so that the alleged retainer, its scope and the supporting facts were set out coherently in the primary pleading.

2. Under CPR 3.4(2)(a), the question is whether the statement of case discloses no reasonable grounds for bringing the claim. The jurisdiction is not confined to an extreme case, although the court must be satisfied that the pleaded case meets that test. The impugned paragraphs could not be read in isolation from the factual matrix and the facts pleaded in support of the alleged retainer.

3. A retainer may be written, oral or inferred from conduct. Where the parties act as though a solicitor-client relationship exists, the court must examine the whole factual context, including meetings, attendance notes and correspondence. The alleged instructions and the scope of any duty were triable issues.

4. The tortious duty was pleaded as concurrent with the contractual duty. It was therefore a separate cause of action and was not properly described as parasitic, even though its scope was no greater than the contractual obligations and its fate might depend on the facts establishing the relationship.

5. For summary judgment, the claim had to carry some degree of conviction and be more than merely arguable. The court must not conduct a mini-trial or resolve credible conflicts in evidence. The evidence of the alleged participants, the documentary context and the scope of the retainer required investigation at trial.

6. The requirement that there be no other compelling reason for a trial was an independent limb of CPR 24.2. The interaction between the parties and the alleged responsibilities of the solicitors formed an additional reason why the matter should proceed. The later attempt to introduce evidence through correspondence was refused as procedurally unfair and irregular.