ONS ULTIMATE HOLDINGS LIMITED & Ors v JOHN NAIR & Anor

Summary judgment may determine an issue where the opposing party has no real, rather than fanciful, prospect of success and there is no other compelling reason for a trial. The court must avoid a mini-trial, although it may reject factual assertions which have no real substance.

Allegations of fraud or dishonesty require particular caution, but they do not create an absolute bar to summary judgment. A representation may arise from conduct. A continuing representation must be corrected if it becomes untrue before the relevant transaction. Material inducement need not be the sole inducement.

For unlawful means conspiracy, an unlawful procedural act and the resulting injury are insufficient by themselves. The evidence must also establish the necessary conspiratorial intention, including an ulterior purpose or benefit at the claimant’s expense where applicable.

The claim concerned an alleged conspiracy to remove Mr Paresh Thakkar from his role as director and employee of Trinity Hotel Limited, together with related allegations of misrepresentation and interference with company bank mandates.

The claimants made overlapping applications under CPR 24.2 for summary judgment on four underlying issues. They sought findings that John Nair had falsely represented that he intended to continue the hotel venture with Mr Thakkar, that the representation formed part of a conspiracy, that Mr Thakkar had been unlawfully removed from the company’s bank mandates, and that his purported removal as director on 23 December 2021 formed part of an unlawful conspiracy.

The central questions were whether the relevant issues had no real prospect of successful defence and whether there was any other compelling reason for them to proceed to trial.

1. Order 1 granted. The court held that Mr Nair’s participation in the refinancing amounted to a representation by conduct that he intended to continue in business with Mr Thakkar. The representation was false, Mr Nair knew it was false, and he intended Mr Thakkar to rely on it. The court inferred material inducement from the circumstances. The representation did not need to be the sole inducement. There was no real prospect of a defence to these issues.
2. The principles concerning representations by conduct in Spice Girls Ltd v Aprilia World Service BV [2002] EWCA Civ 15 applied. A representation may have continuing effect, and a representor who discovers that it is untrue must correct it before the transaction is completed. Mr Nair had not done so.
3. Order 2 refused. The additional allegation concerning Mr Al Shamsi’s intention to continue supporting the venture added little and risked confusion. The alleged conspiracy was insufficiently identified. Since an alleged co-conspirator had not been given an opportunity to answer the allegations, there was a compelling reason for a trial.
4. Order 3 refused. The court accepted that removal from the bank mandates appeared not to have been sanctioned by a board meeting, but declined to make a summary finding. The proposed order could predetermine unresolved issues concerning the merits, justification and alleged ulterior purpose of the removal, and the narrower finding would not materially shorten the trial.
5. Order 4 refused. The purported removal as director on 23 December 2021 was unlawful and that issue was res judicata following the Linwood Order. That did not establish an unlawful means conspiracy. Applying The Racing Partnership Ltd v Sports Information Services Ltd [2020] EWCA Civ 1300, the tort required combination, concerted unlawful action, intention to injure and damage. A procedural defect, with injury naturally resulting from the act, was insufficient without a further ulterior motive or benefit at the claimant’s expense. The conspiracy issues required evidence at trial.
6. The applications were therefore allowed only in relation to Order 1. No order was made in the form of Orders 2 to 4 or on the further matters for which summary judgment was sought.