Robert Jewkes v Samuel Alexander Watson & Anor

On an application for strike out and summary judgment, a defence should proceed to trial where the evidence gives the defendant a realistic prospect of establishing an equitable defence. The court may determine a short point of law or construction summarily where the evidence is sufficient and no fuller factual investigation is reasonably required.

Non est factum requires a fundamental difference between the document signed and the transaction intended, together with a qualifying disability or trickery and reasonable care by the signer. Undue influence may be actual or presumed. A parent-child relationship may raise the presumption, particularly where trust, confidence or vulnerability exists, and independent legal advice is the usual means of rebutting it. Lawful threats and financial difficulty did not establish duress or frustration on the evidence.

The claimant sought payment of US$697,000 plus contractual interest under a deed by which the defendants assumed obligations in return for the assignment of the claimant’s rights under commercial agreements. The defendants had signed the deed without independent legal advice and advanced defences of non est factum, undue influence, duress and frustration.

The claimant applied to strike out the defences under rule 3.4(2) of the Civil Procedure Rules 1998 and for summary judgment under Part 24. The central issues were whether any defence had a realistic prospect of success and whether the evidence permitted final determination without a trial.

1. Disposition. The court struck out the parts of the defendants’ Statement of Case and Defence Statement advancing non est factum, duress and frustration. The application for summary judgment was dismissed.
2. Summary judgment principles. The applicant bore the burden under rule 24.2. The question was whether the defendants had a realistic, rather than fanciful, prospect of successfully defending the claim. The court must avoid a mini-trial, but need not accept unsupported or contradicted assertions at face value. It must also consider evidence reasonably expected to be available at trial. A short legal or construction issue may be decided summarily where the necessary evidence and opportunity for argument are available.
3. Non est factum. Signing only the execution page did not assist the defendants. They had to show that they took reasonable care to discover the general effect of the deed. They had no real prospect of doing so. Nor did the additions to the final deed make it fundamentally different in substance or kind from the draft. The defence therefore had no real prospect of success.
4. Undue influence. The evidence gave the defendants a realistic prospect of proving actual emotional pressure and misrepresentation by their father. It also supported a presumption arising from the parent-child relationship, trust and confidence, and, in Emily’s case, vulnerability. The transaction could be shown to be manifestly disadvantageous or not reasonably explicable by ordinary motives. The absence of independent legal advice meant that rebuttal of the presumption was unlikely. The claimant’s knowledge, including constructive notice of the risk of pressure, raised a triable issue.
5. Duress and frustration. The alleged threats were lawful and did not fall within the recognised categories of lawful-act duress. The father’s illness and the company’s financial difficulties did not radically alter the nature of the defendants’ contractual obligations. The deed transferred the payment obligation to them, and its performance remained the same obligation despite increased difficulty or expense.