Thurloe Lodge Ltd v Amberwood Drive Ltd & Anor

On a defendant’s application for summary judgment, the court must decide whether the claim has a realistic, rather than fanciful, prospect of success, while avoiding a mini-trial. A short point of law or construction may be decided summarily where the evidence is sufficient, but factual or evidential issues requiring fuller investigation should proceed to trial.

An interim injunction finding that there was a serious issue to be tried does not create a res judicata preventing a later summary judgment application. Nor does consent to an amendment amount to an admission that the amended case is legally or factually sound.

The claimant owned Thurloe Lodge and claimed rights over a private roadway, including rights to stop, park, load and unload, carry out works, and maintain or replace services. The defendants applied for summary judgment on claims based on Section 62 of the Law of Property Act 1925, prescription and the terms of an earlier lease.

An earlier interim injunction had preserved the claimant’s use of the roadway pending trial. The central questions were whether that earlier decision or consent to amendments prevented summary judgment, and whether the claimant’s claimed rights could be rejected without a trial.

1. Preliminary points. The earlier finding that there was a serious issue to be tried did not prevent summary judgment. The tests at the interim injunction stage and on summary judgment were materially different, and the later application was supported by fuller pleadings, evidence and legal argument. Consent to re-amendment signified only that the issue could be litigated; it was not an admission that the claim had real prospects of success.
2. Summary judgment principles. The court applied the approach in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). The claimant needed a realistic prospect of success, but the court had to avoid conducting a mini-trial and had to consider evidence reasonably expected to be available at trial. A short point of law or construction could be decided summarily where the evidence was sufficient, but a fuller factual investigation could constitute a compelling reason for trial.
3. Prescription. The evidence concerning the nature, extent and continuity of use of the roadway, and whether the use had been interrupted, raised factual and evidential questions. Those questions could not fairly be resolved on the defendants’ acceptance of the claimant’s evidence for the purposes of the application. Summary judgment on the prescription claims was therefore refused.
4. Law of Property Act 1925, section 62. The claimant’s case that rights or advantages enjoyed during its predecessor’s tenancy could be upgraded into freehold rights on acquisition of the freehold was legally arguable. The reasoning in Wood v Waddington [2015] EWCA Civ 538 supported the arguability of the case. The effect of the lease covenant against obstruction, the factual context, the alleged non-enforcement or abandonment of the covenant, waiver or acquiescence, and any contrary intention under section 62(4) all required further examination.
5. Repair and replacement. The defendants’ objection to the claimed right to maintain or replace services raised a potentially fine distinction between repair and replacement. The principle that the dominant owner may maintain and repair the way, reflected in Carter v Cole [2006] EWCA Civ 398, did not justify determining the scope of the claimed right summarily.
6. Disposition. Both applications for summary judgment were dismissed. The disputed issues remained for trial.