Astute Capital Plc & Anor v Countrylarge 444 Limited & Ors

The court granted relief from sanctions where the failure to serve a pleading was trivial, caused by the opponent withdrawing an agreed timetable shortly before the deadline, caused no prejudice and did not frustrate efficient justice. The three-stage test in Denton was applied.

Summary judgment requires a realistic, more than arguable, prospect of success. The court must avoid a mini-trial, but should decide a short legal or construction point where the evidence is sufficient.

For interim relief, the governing consideration is the course involving the least risk of injustice or irremediable prejudice. An adjourned application with liberty to apply may support later interlocutory relief without engaging the rule against re-fighting settled interlocutory disputes.

The claimants sought repayment of sums allegedly advanced under loan agreements, proprietary relief concerning sale proceeds from a property development, and relief against a former director. The defendants sought default judgment or strike-out relief, reverse summary judgment, and orders setting aside or limiting earlier undertakings.

The court considered whether the claimants had defaulted in serving a Reply and Defence to Counterclaim, whether the substantive claim had a realistic prospect of success, whether interim restrictions and information orders were justified, and whether an earlier application was abusive because it had been adjourned on undertakings.

1. Relief from sanctions. There was no binding consent order because the proposed order had not been lodged with or sealed by the court, and the defendants’ email expressed only in-principle agreement. Applying the three-stage test in Denton, the breach was neither serious nor significant. The defendants’ withdrawal of consent shortly before the deadline did not justify the withdrawal, caused no material prejudice, and did not alter the injunction application’s relevance. Relief was therefore granted and the pleading served on 27 January 2023 was treated as valid. The court also held that, even without a Reply, the claimants would have been taken to join issue with the Defence and Counterclaim under CPR rule 16.7.
2. Summary judgment. Under CPR Part 24.2, the question was whether the claimants’ case had a realistic rather than fanciful prospect of success and whether there was any compelling reason for trial. The court could not resolve disputed oral evidence or conduct a mini-trial. The May 2021 agreements were capable of taking effect notwithstanding the absence of an executed charge because the relevant conditions were inserted for ACA’s benefit and could be waived. The signature arrangement did not make the restatement agreement ineffective, and the alleged agreement concerning the charge and sale proceeds raised triable issues of fact and law. The application was dismissed.
3. Interim relief. The court applied the least-risk-of-injustice approach identified in Zockoll Group v Mercury Communications (No 1) [1998] FSR 354 and National Commercial Bank of Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405. Existing undertakings were continued and expanded to cover further flats and sale proceeds. Finlaw was restrained from dealing with proceeds, subject to the parties’ further submissions on the precise terms and the claimants’ undertaking in damages. ARE was ordered to provide information, with any further relief left for determination.
4. Earlier application. The September application had been adjourned on undertakings, rather than withdrawn or finally disposed of, with liberty to apply. The principle in Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 WLR 485 did not prevent a further order. The application to strike out claim 001438 and to release ARE from its undertakings was dismissed. Finlaw also lacked standing to set aside an undertaking which it had not given and which ARE did not seek to set aside.

First instance decision. No appellate history was stated in the judgment.