Persimmon Homes Ltd v Country Weddings (Cardiff) Ltd

Summary judgment on a construction issue should be granted only where the court has all information necessary to determine the issue and is in as good a position as the trial judge. The court should decide a short point of construction where the evidential position is complete and the parties have had a fair opportunity to address it. Where the principal document is missing and further disclosure or witness evidence may materially assist, attempting construction on incomplete information is inappropriate and may prejudice the fair resolution of the dispute. A similar document from a related transaction does not ordinarily compensate for the missing document, because each instrument must be construed according to its own terms and transactional setting.

The claimant, a housebuilder, sought declaratory relief under section 84(2) of the Law of Property Act 1925 concerning a restrictive covenant affecting land intended for a pumping station. The defendant, successor in title to the original vendor and operator of an adjoining wedding venue, asserted that it could enforce the covenant.

The claimant applied for summary judgment under CPR Part 24 on the issue whether the covenant ceased to have effect, or changed in effect, following the death of the original vendor. The original 1983 conveyance was unavailable. The claimant relied on a similar conveyance executed by the same vendor the following day. The central issue was whether the court could fairly and conclusively construe the covenant on the evidence then available.

1. Application dismissed. The court was not satisfied that it possessed all the information necessary to construe the restrictive covenant or that it was in as good a position as the trial judge would be.
2. Under the approach in ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, the court should determine a short issue of construction on a summary judgment application where it has all necessary evidence and the parties have had an adequate opportunity to argue the issue. It should not defer determination merely because further evidence is asserted without a proper evidential basis.
3. That principle did not justify determination here. The relevant conveyance was missing. The court had only the land-register reproduction of the covenant and lacked any definition clauses or other provisions which might bear on the meaning of vendor and the effect of the vendor’s death. Further disclosure, witness enquiries and surrounding-context evidence might materially assist at trial.
4. The claimant therefore failed to establish that the case was suitable for summary determination. Reaching a provisional construction on incomplete information would not be decisive and could positively hinder the trial.
5. The later conveyance between the same vendor and different purchasers was relevant background, but could not substantially replace the missing conveyance. Applying the approach in Midland Bank plc v Cox McQueen [1999] PNLR 593, each document had to be construed according to its own terms and particular transactional setting.
6. The defendant was entitled to a fair dispute-resolution process, including the ordinary trial processes of disclosure and evidence. The claimant’s summary judgment application was accordingly dismissed.