Toner v Telford Homes Ltd & Ors

On strike-out and reverse summary judgment applications, the court must assume pleaded facts will be proved unless they are plainly unsustainable, and must avoid a mini-trial. A claim should not be summarily determined where disclosure or factual findings may materially affect the legal issue. A non-reliance clause may bar negligent or statutory misrepresentation claims if reasonable, but does not ordinarily exclude fraudulent misrepresentation. Fraud and deliberate concealment are fact-sensitive, particularly for limitation purposes. Harassment requires a connected course of conduct which objectively crosses the boundary from unattractive or unreasonable behaviour into oppressive and unacceptable conduct. Managing agents generally owe no duty to tenants to perform their employer’s contractual obligations, but duties may arise from positive acts causing nuisance or foreseeable physical or health-related harm.

The claimant brought related High Court and County Court claims arising from the purchase and lease of a flat in a residential development. He alleged misrepresentation and deceit concerning the balcony and anticipated service charges, breach of construction and lease obligations, defective works, excessive service charges, harassment, negligence, nuisance and slander.

The defendants applied under CPR 3.4(2) and CPR 24.2 to strike out the claims or obtain reverse summary judgment. The County Court claim was transferred to the High Court so that the applications could be dealt with together. The central issues were whether the pleaded claims disclosed reasonable grounds, whether they had a real prospect of success, and whether limitation or contractual allocation of responsibility justified summary disposal.

1. Applicable approach. The court applied the principles governing strike-out and summary judgment. It assumed the pleaded facts would be proved, avoided a mini-trial, and considered whether a fuller factual investigation or disclosure could affect the outcome. Difficult or developing questions of law were unsuitable for summary disposal where factual context mattered.
2. Misrepresentation. The balcony and service-charge allegations could, in principle, concern continuing statements of existing intention or reasonable grounds for an intention. Clause 9 of the Contract was capable of satisfying the reasonableness requirement under section 3 of the Misrepresentation Act 1967 and barred negligent and statutory misrepresentation claims. It did not bar fraudulent misrepresentation. The pleaded facts gave the balcony deceit and deliberate-concealment allegations a real prospect of success, subject to limited re-pleading. The service-charge fraud allegations required further particulars and could be struck out if not properly amended.
3. Limitation. The misrepresentation causes of action ordinarily accrued on entry into the Contract. However, the claimant had real prospects of relying on fraud or deliberate concealment under section 32 of the Limitation Act 1980. The contractual construction claims also had an arguable later accrual on completion and delivery of possession. The court declined to resolve those fact-sensitive issues summarily.
4. Contract and service charges. The construction obligations were owed by Bishopsgate, not THL or Avantgarde. Claims under the Contract against THL and Avantgarde therefore failed. A direct service-charge claim against Avantgarde remained arguable, including whether charges improperly included costs for which Bishopsgate was responsible.
5. Duty of care and harassment. R&R owed no general duty to perform Avantgarde’s contractual obligations or to pursue other companies for repair costs. Claims based solely on omissions failed. Claims concerning the switching on and continued operation of the defective air-conditioning unit, and other positive acts, could proceed. The harassment claims were sufficiently fact-sensitive and connected to the alleged course of conduct to resist summary determination.
6. Defamation and orders. The slander claims failed because no sufficient special damage was pleaded. Claims for rescission, negligent or statutory misrepresentation, contractual liability against the wrong entities, contractual liability against R&R, purely negative duties of care and defamation were ordered to be struck out or summarily dismissed. Other claims remained subject to further information, amendment and case management.