Lowenthal v NHS Resolution

Strike-out and summary-judgment applications require the court to assess whether the claim has a realistic, rather than fanciful, prospect of success. A realistic prospect is more than merely arguable. The court must not conduct a mini-trial, but it is not required to accept factual assertions without analysis, particularly where contemporaneous documents contradict them. A claim may be struck out where the evidence demonstrates that the alleged agreement has no realistic prospect of being established.

The claimant alleged that she had agreed with the defendant’s representative that a costs liability of approximately £50,000 would be compromised for £27,500 in full and final settlement. She sought repayment of sums taken from the proceeds of sale of property. The defendant applied to strike out the claim under CPR 3.4(2) or alternatively for summary judgment under CPR 24.2. The central issue was whether the claimant had a realistic prospect of proving a concluded agreement.

1. The defendant’s application was granted and the claim was struck out. The claimant had been given sufficient time and opportunity to prepare and present her case, despite her medical difficulties and vulnerability. No further adjournment was justified.
2. Under CPR 3.4(2), a statement of case may be struck out where it discloses no reasonable grounds, constitutes an abuse of process, or is likely to obstruct the just disposal of proceedings. This includes an unwinnable claim whose continuation would provide no possible benefit and waste resources.
3. Under CPR 24.2, summary judgment may be given where the claimant has no real prospect of success and there is no other compelling reason for a trial.
4. The relevant approach was whether the claimant’s case had a realistic and non-fanciful prospect of success. The court should not conduct a mini-trial, but, applying the guidance in A C Ward & Sons [2009], it was not required to accept factual assertions without analysis. Contemporaneous documents could demonstrate that an assertion had no real substance.
5. The claimant relied on emails referring to a possible one-off payment of £27,500 or payment of £32,500 over three years. Those emails did not record her acceptance of either option. Her assertion that an oral agreement had been reached was contradicted by later correspondence describing proposals for a payment plan and stating that the amount of the judgment debt remained to be calculated. The court concluded that no agreement had been concluded and that the claim had no realistic prospect of success.