Nebahat Evyap Işbilen v Selman Turk & Ors

Default judgment may be entered against one defendant where the claim can be dealt with separately, even though a related claim remains pending against another defendant. The court must nevertheless grant only the relief to which the claimant is entitled on the pleaded case.

A catalogue of possible remedies is not an appropriate form of judgment. The claimant should make any necessary election, provide a mechanism for doing so, or seek an orderly adjournment. Summary judgment should be refused where factual disputes remain, or where determining a derivative claim separately creates a real risk of inconsistent decisions.

The claimant sought partial default judgment against three corporate defendants, summary judgment against one of them in the alternative, and summary judgment against the first defendant on an undue influence claim.

The claims arose from alleged unauthorised transfers of the claimant’s assets and transactions said to have been procured by the first defendant. The corporate defendants had not acknowledged service or defended the claims. The first defendant appeared in person and relied on existing pleadings and evidence, although he had not specifically answered the amended undue influence claim.

The central issues were whether the claims against the defaulting defendants could be determined separately, whether the pleaded claims justified the declarations and other relief sought, and whether summary judgment was appropriate on the undue influence and merits-based claims.

1. Default judgment. Applying Otkritie International v Urumov, the court held that a several claim against a defaulting defendant could be determined separately from a related claim against another defendant. The possibility that the other defendant might later be exonerated did not itself prevent judgment in default. The claimant was entitled to declarations concerning specified funds or traceable proceeds where the pleaded case supported them.
2. The deceit claim against Sentinel Global Partners Ltd was inadequately pleaded. The pleading alleged falsity but did not properly identify the respect in which the representations were false. Default judgment could not therefore be granted on that claim. The court also refused the proposed catalogue of alternative remedies. Such a list did not advance the proceedings. The claimant should elect, establish a procedure enabling election, or seek an adjournment for an orderly determination of further relief.
3. Undue influence. Summary judgment against Mr Turk was refused. Although the claimant had a prima facie strong case, the pleadings and available evidence raised issues concerning the parties’ relationship, the claimant’s understanding of English and financial matters, her vulnerability, and the disputed Essential Instructions. The partial nature of the application and the need to investigate overlapping fiduciary and undue influence issues at trial also made fragmentation inappropriate.
4. Summary judgment on the merits. The alternative application against AET was dismissed. A merits-based determination of the derivative claim, while the same underlying factual issues remained to be tried against Mr Turk, created a risk of inconsistent decisions. In contrast to a technical default judgment, that risk provided a compelling reason under CPR Part 24 for the claim to proceed to the same trial.
5. The court granted the specified default judgments to the extent identified, refused the remaining relief, and made no order on the summary judgment applications, while indicating that trial directions might be considered.