David Man & Anor v Hazelend LLP

Summary judgment may determine a severable part of a claim or defence, but not an isolated factual or legal issue which merely reduces the matters remaining for trial. The court must assess whether the claim or defence has a realistic prospect of success without conducting a mini-trial, while retaining its critical faculties and considering reasonably available trial evidence.

Rectification for common mistake requires convincing evidence of a prior concluded agreement or a common intention, communicated between the parties, which the written instrument failed accurately to record. Where one issue is unarguable, it may be summarily determined even though other issues require a trial, unless there is a compelling reason to proceed otherwise.

The claim concerned accrued contractual interest under a loan made by David Man to Hazelend LLP. The debt was subsequently assigned to Mark Holyoake under a written assignment executed in 2018. The claimants contended that the assignment preserved their right to recover interest accrued before the assignment.

Hazelend advanced alternative defences and a counterclaim. It alleged that the written assignment failed to record an earlier oral agreement and sought rectification. It also alleged that the assignment was varied orally in August 2019 in return for a payment of £5,000. Finally, it disputed whether the loan repayment terms had been varied by an agent, affecting limitation.

The claimants sought summary judgment on five identified issues. The court reformulated those issues by reference to the proper scope of summary judgment.

1. Summary judgment principles. The court applied the principles in Easyair Ltd v Opal Telecom Ltd, including the distinction between a realistic and fanciful prospect, the prohibition on a mini-trial, and the need to consider evidence reasonably expected to be available at trial. Calland v Financial Conduct Authority confirmed that disputed factual or legal questions do not prevent the court assessing prospects critically.
2. Proper scope of the application. Following Anan Kasei Co v Neo Chemicals & Oxides (Europe) Ltd, the relevant “issue” under Civil Procedure Rules 1998, rule 24.2, is a severable part or component of a claim, not an isolated stepping-stone. Questions of authority and mistake therefore could not be determined separately merely as tactical issues.
3. Rectification. Applying FSHC Group Holdings Ltd v GLAS Trust, Hazelend’s counterclaim was plainly arguable. There was evidence capable of supporting an earlier oral agreement transferring the whole loan, but gaps in the communications and the documentary record meant that the court could not determine the parties’ common intention summarily. The issue remained for trial.
4. 2019 variation. The contemporaneous correspondence showed that the parties had postponed discussions about interest and contained no agreement giving up the claimants’ rights. Hazelend’s pleaded case that the £5,000 payment was consideration for an August 2019 variation was unarguable. That defence and counterclaim were dismissed. The court rejected the submission that the issue should nevertheless proceed to trial alongside arguable issues, finding no compelling reason to do so.
5. Limitation and agency. The alleged 2015 variation would place the claim within time if it bound Hazelend. Although the court was doubtful about Hazelend’s denial of Mr Pym’s authority, the evidence did not make that case unarguable. The limitation defence therefore proceeded to trial.
6. The court declined a conditional order, an order for Initial Disclosure, and further Further Information. It also refused a strike-out application concerning authority and common mistake. The proceedings were directed to be transferred to the Central London County Court.

First-instance decision. No appellate history is stated in the judgment.