Brake & Ors v The Chedington Court Estate Ltd & Ors

A preliminary issue should be ordered only where it is decisive or potentially decisive, can be tried efficiently on sufficiently agreed facts, and is unlikely to increase cost, delay or procedural complexity. The court must consider whether the issue will dispose of the litigation or materially reduce the preparation or trial. An issue which does not determine the claimant’s underlying rights, depends on disputed evidence, or may require amended pleadings is generally unsuitable. A stay or adjournment pending appeal is not granted merely because an appeal is pending or may follow. The applicant must show why a stay is justified, ordinarily by identifying substantial or irreparable prejudice.

The Brakes made two interlocutory applications in long-running insolvency and possession litigation. They sought to lift a stay affecting eviction proceedings and to have the validity or enforceability of a licence over West Axnoller Cottage tried as a preliminary issue. They also sought a general stay or adjournment of the remaining trial issue concerning revesting of property rights under section 283A of the Insolvency Act 1986, pending an appeal from earlier orders.

The court had to decide whether the licence issue was suitable for summary determination before the substantive possession claim, and whether the pending appeal justified postponing the section 283A trial.

1. Informal Application. The stay on the eviction proceedings was lifted conditionally. The Brakes had to pay the appropriate issue fee for the damages claim, or limit or abandon that claim and pay the application fee. The court refused to direct trial of the proposed preliminary issue.
2. A preliminary issue must be decisive or potentially decisive, ordinarily raise a question of law, be capable of determination without significant delay, and be tried on agreed or assumed facts. The court must also consider whether it will reduce cost and time, whether disputed facts undermine its value, whether it may fetter a just result, increase expense, delay the trial, prove irrelevant, or lead to amended pleadings. The proposed licence issue would not establish the Brakes’ possessory rights or their infringement. It depended on highly contentious facts, including the alleged frustration or termination of the licence and the purpose for which it was granted. It was not pleaded and might require amendment. The application was therefore refused.
3. The burden in the eviction proceedings lay on the Brakes as claimants. Chedington did not have to prove a better right to possession. The validity of the licence did not itself determine whether the Brakes had possessory rights which had been infringed.
4. Notice Application. The application for a stay or adjournment of the section 283A trial was refused. Whether Chedington had a legitimate interest in that issue required a full trial. The court could not assume that the Brakes’ appeal or any restored summary judgment application would succeed. The possibility of a later appeal did not justify postponement, and CPR rule 52.16 placed the burden on the applicant to establish that a stay should be granted. No irreparable harm was shown.
5. The court indicated that it would not ordinarily list the whole eviction proceedings in the May trial window, given the conditional stay, the need for proper preparation and the disproportionate use of judicial resources. It invited written submissions on costs.