Myck Djurberg v Thames Properties (Hampton) Limited & Ors

On an application for reverse summary judgment, the defendants must show that the claim has no realistic prospect of success. A claim is fanciful where it lacks evidential substance and carries no degree of conviction. The court must avoid a mini-trial, but need not accept unsupported factual assertions at face value, particularly where contemporaneous evidence contradicts them. It should consider evidence reasonably expected to be available at trial, while deciding a short point of law or construction where the necessary material is before it. A bankrupt’s property generally vests in the trustee, subject to the statutory exceptions for necessary work equipment and basic domestic needs. A mooring licence ancillary to ownership of adjoining land does not survive the loss of that title.

The claimant, formerly the registered freehold proprietor of two properties and an undischarged bankrupt, claimed against the purchaser and its directors. He alleged that personal assets had been withheld, damaged or misappropriated, that an agreement concerning access and moorings had been breached, and that he retained rights relating to the moorings.

The defendants applied to strike out the claim or obtain reverse summary judgment. The court considered whether the pleaded and evidential case had a realistic prospect of success, including the claimant’s alleged ownership of assets, exclusion from the properties, and continuing mooring rights. The application to extend a civil restraint order was adjourned.

1. Reverse summary judgment. The burden lay on the defendants to establish that the claim had no realistic prospect of success. The court applied the guidance summarised in EasyAir Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). It distinguished a realistic claim, which carries some degree of conviction, from a fanciful claim. The court must not conduct a mini-trial, but it need not accept unsupported assertions without analysis. It must consider reasonably available trial evidence and should decide a short legal or construction issue where the necessary material is before it.
2. The claim concerning allegedly stolen or damaged assets had no realistic prospect of success. The claimant had not shown what assets were present on 18 July 2022, their substantial value, or his ownership. Under Insolvency Act 1986, s 283(2), his property had vested in his trustee in bankruptcy, subject to limited exceptions for necessary work equipment and basic domestic needs. The evidence did not establish that the alleged assets fell within those exceptions.
3. The evidence also failed to show that the claimant had been prevented from removing the assets. The single video relied upon was satisfactorily explained, and there was no convincing evidence of further exclusion or any contemporaneous complaint. The court therefore found the asset claims fanciful.
4. The mooring claims were likewise fanciful. The claimant had no registered title to the moorings, no evidence that the pontoons had been removed or damaged, and no evidence that he had been denied the right to remove them. Any mooring licence was ancillary to ownership of the adjoining land and did not survive the loss of title. The settlement agreement contained no term preserving the alleged mooring business.
5. The entire claim was dismissed by reverse summary judgment. Consequential matters and the application for an extended civil restraint order were adjourned. Time for any application for permission to appeal was extended under CPR 52.3(2)(a).

The judgment is a first-instance decision. It records that Miles J had previously dismissed the claimant’s application for an injunction on 24 January 2023; the claimant was seeking permission to appeal that order.