Advinia Care Homes Ltd v (1) BUPA Care Homes Investments (Holdings) Ltd & Ors

Summary judgment is inappropriate where the issue depends on disputed factual matrix evidence, the construction of an informal agreement, or evidence likely to emerge on disclosure and at trial. A court may decide a short point of law or construction under CPR Part 24 where it has the evidence necessary for a fair determination, but it should not do so where the material is incomplete or contested.

An order under CPR 3.1(7) or a liberty to apply provision will ordinarily be varied only for a material change of circumstances, newly discovered facts, or another compelling reason. A party cannot obtain an interim payment under CPR 25.7(1)(a) without proving an admission of present liability to pay the relevant sum.

Advinia applied for summary judgment concerning whether agreements governing the sale and operation of care homes had been varied by a July 2018 email exchange so as to permit the set-off of sums owed by Advinia against trust money held for it. It also sought release of money paid into court under an earlier mandatory injunction and substitution of a different cross-undertaking provider.

Advinia Holdings separately sought an interim payment of £2,131,393 in connection with disputed completion accounts under the sale and purchase agreement, relying on an alleged admission of liability. The applications raised whether the netting arrangement could fairly be construed summarily, whether the earlier order should be varied, and whether the contractual completion-account process prevented an interim payment.

1. Summary judgment. The Summary Judgment Application was dismissed. Under CPR 24.2, Advinia bore the burden of showing that the Defendants had no real prospect of successfully defending the issue and that there was no other compelling reason for a trial. The issue was not merely a short and undisputed construction point. The parties relied on disputed evidence about preceding telephone conversations, the scope of the alleged netting arrangement, the liabilities included within it, and when it ended. Further disclosure and cross-examination could materially affect the construction and implementation of the agreement. The issue therefore had to proceed to the Stage 1 trial.
2. The court declined to construe the July 2018 emails summarily. The words concerning an ad hoc agreement were unclear, and the surrounding circumstances were insufficiently established. The objective principles of contractual interpretation required consideration of the relevant factual matrix, particularly given the informality and brevity of the communications.
3. Variation application. The application to vary the earlier order was dismissed. The payment into court was required by that order and was not a material change of circumstances. The claimed need for cash pre-dated the order, and the proposed substitution of Advinia Holdings for the Kanoria Foundation merely reflected what Advinia wished to happen. The carefully calibrated security would not be disturbed without very good prospects of success, a material change, or another sufficient reason.
4. Interim payment. The application under CPR 25.7(1)(a) was dismissed. The First Defendant had not admitted present liability to pay £2,131,393. Its pleaded position was conditional on Advinia Holdings accepting that the draft completion accounts were the final completion accounts. Until the contractual process produced final completion accounts, no presently enforceable liability arose.
5. All three applications were dismissed. Permission was granted, if pursued, to amend Advinia Holdings’ Defence to Additional Claim and Counterclaim.