AXA FRANCE IARD SA v SANTANDER CARDS UK LIMITED

On an application under Civil Procedure Rules 1998 Part 24 or rule 3.4, the court should not conduct a mini-trial. A fact-sensitive claim should proceed where oral or further evidence may affect the outcome. The court may decide a short point of law or construction summarily where the evidence is sufficient.

A pleaded settlement agreement may be binding despite an intended later written agreement, depending on the parties’ objective intention and the terms agreed. A difficult contractual construction issue should ordinarily proceed to trial. A contribution claim must plead liability capable of being established in English court proceedings for the same damage. Findings by another decision-maker are generally inadmissible as proof of facts at trial, although the underlying facts may be pleaded as particulars.

AXA claimed approximately £644 million from Santander entities arising from alleged historic mis-selling of payment protection insurance. The claims included breach of a settlement agreement, contractual indemnity, negligence and contribution under section 1 of the Civil Liability (Contribution) Act 1978.

The defendants applied to strike out the settlement, indemnity and contribution claims, to remove Santander Insurance Services UK Limited as a party, and to strike out reliance on an FSA Final Notice concerning Santander’s later PPI sales. AXA applied to amend its Particulars of Claim. The court decided whether the claims had realistic prospects, whether the settlement claim was abusive, whether the contractual provisions had an obvious construction, and whether the Final Notice was admissible.

1. Summary judgment and settlement claim. The settlement claim was not suitable for strike out. Whether a binding agreement arose at the June 2015 meeting, during subsequent negotiations, or when AXA signed and sent the proposed agreement depended on objective construction and potentially on oral evidence from attendees. A later formal document did not necessarily prevent an earlier binding agreement.
2. Abuse of process. The settlement claim was not abusive. AXA’s position in earlier proceedings that no Relevant Distributor Agreement had been executed was not sufficiently inconsistent with its present case that a different settlement agreement had been concluded. The application under CPR 3.4(2)(b) was dismissed.
3. Indemnity claim. The construction of the Agency Agreement and Novation Agreement, including the effect of clauses 1.1.3, 1.2, 1.3 and 2 of the Novation Agreement and clause 12.2 of the Agency Agreement, was difficult and context-sensitive. Both sides had arguable submissions. The claim against SISUK therefore proceeded to trial, and SISUK was not removed.
4. Contribution claim. The pleaded claim under section 1 of the Civil Liability (Contribution) Act 1978 was struck out. AXA had failed to plead clearly that AXA and SCL were liable, or potentially liable, for the same damage in liabilities capable of being established in English court proceedings. AXA was given permission to replead.
5. FSA Final Notice. The Final Notice was a decision-maker’s determination and was inadmissible as evidence proving Santander’s alleged mis-selling. The proposed amendments relying on its findings as proof were refused. AXA could, however, refer to the report and plead selected findings as particulars, leaving the trial judge to determine the allegations on admissible evidence.
6. The parties were directed to exchange written submissions on costs.