Kuljinder Kaur Thandi v Tripatpal Saggu

Summary judgment should be granted only where the evidence and legal issue permit a reliable final determination without a trial. The court must assess whether the claim has a realistic, rather than fanciful, prospect of success, while avoiding a mini-trial. It should hesitate where disputed facts or further evidence may affect the outcome, particularly when determining one issue will leave related claims for trial. Points of construction, estoppel and compliance with Law of Property (Miscellaneous Provisions) Act 1989 section 2 may require consideration of the factual background and should not be determined summarily where they are genuinely arguable. Defective pleading may justify an order for further particulars without disposing of the underlying claim.

The claimant sought partial summary judgment under CPR Part 24 on the defendant’s counterclaim for specific performance or damages arising from alleged agreements for the sale of a commercial property. She also sought an unless order requiring the defendant to re-plead claims based on proprietary estoppel and constructive trust.

The claimant argued that the written letters were subject to contract, that estoppel prevented the defendant from denying that position, that the alleged contract failed to comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, and that the counterclaim inadequately pleaded breach and damages. The central issue was whether any part of the counterclaim could fairly be determined before trial.

1. Summary judgment. The application for summary judgment was refused. The court applied the principles in Easyair Limited v Opal Telecom [2009] EWHC 339 (Ch), as approved in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098. The court had to decide whether the counterclaim had a realistic prospect of success and whether there was any compelling reason for summary disposal, without conducting a mini-trial.
2. The letters were not expressly stated to be subject to contract. Their wording arguably gave them some immediate contractual effect. Whether the parties intended a binding agreement, a provisional agreement or an agreement conditional on formal contracts required determination by the trial judge on the facts and in the context of the other construction issues.
3. The alleged estoppel by convention and equitable estoppel were unpleaded. They were also unsuitable for determination on written evidence alone because the parties’ understanding and expectations, and the relationship between the estoppel issues and construction of the letters, required factual investigation.
4. The arguments under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 were not sufficiently clear-cut. The letters appeared to record mutual obligations and identified the parties as seller and buyer, but the extent and effect of those obligations, and whether all contractual terms were incorporated, required consideration of the evidence as a whole at trial.
5. The defendant’s pleading of breach was inadequate in failing sufficiently to identify when the alleged breaches occurred, their nature, whether the defendant called for exchange or completion, and whether he was ready, willing and able to perform. That defect did not justify summary judgment. Further and better particulars were ordered within 21 days.
6. The claim for recovery of the waived fees and deposits was also left for trial. Those sums had a realistic prospect of being recoverable as reliance loss. The claimant’s application to require wholesale re-pleading of the proprietary estoppel and constructive trust claims was refused as too late and inconsistent with the overriding objective.

This was a first-instance interlocutory decision. The judgment records an earlier interim injunction decision by Mr Justice Adam Johnson on 2 September 2021, but no appeal from that decision is stated.