Resource Recovery Solutions (Derbyshire) Limited (in administration) v Derbyshire County Council & Anor

Summary judgment should generally be granted on a contractual construction issue only where the court has a clear view and the issue is suitable for final determination without a trial. Complexity alone is not decisive. The court must also consider whether determination would serve a useful case-management purpose, particularly where a full trial on liability will occur in any event.

Where competing constructions have real prospects of success and the meaning of a clause depends on its factual, technical and economic context, the issue should ordinarily be left for trial. A negative declaration concerning only part of one clause may be inappropriate where it would not resolve a substantial part of the dispute.

Strike out for prolixity, argument or tendentious pleading requires a proportionate assessment. Mere infelicities do not ordinarily amount to abuse of process.

The claimant brought proceedings concerning compensation payable following the termination for contractor default of a long-term waste-management project agreement. The defendants applied for summary judgment on two issues concerning the construction of clause 58.3, which governed compensation where there was no liquid market and no re-tendering. They also sought to strike out parts of the claimant’s Amended Reply as containing a new case, argument, evidence, repetition and tendentious material.

The principal contractual questions concerned whether the compensation calculation required consideration of the defendants’ actual intended performance and forecast rectification costs, and what was meant by providing the project to the “standard required”. The court also considered the applicable principles for summary judgment and pleading abuse.

1. Summary judgment. The court applied the principles summarised in Easyair. A difficult or complex construction issue may still be suitable for summary judgment, but the court must consider whether the issue is clear, whether the evidence is sufficient, whether a trial may affect the result, and whether summary determination serves a useful purpose.
2. Issue 1. The competing constructions of clause 58.3.3 were both properly arguable. The wording concerning costs “forecast to be incurred by the Councils”, particularly in clause 58.3.3.3(d), could support some consideration of actual intended performance and actual forecast rectification costs. The contractual materials also supported competing approaches. The construction was therefore not clear.
3. The proposed declaration was merely negative and concerned one element of a wider dispute. It would not determine the claim or a substantial part of it, and would not materially reduce the trial timetable, disclosure or expert evidence. Summary judgment and strike out on Issue 1 were refused.
4. Issue 2. The meaning of “standard required” could not properly be decided in the abstract. It depended on the detailed technical and factual question of which obligations, methods and performance requirements were to be reflected in the Deemed New Contract and the model. Neither pleaded high-level construction was necessarily wholly correct. Summary judgment was refused.
5. Reply strike out. A reply must not introduce a new claim or contradict the particulars of claim. Pleadings should be concise, contain material facts rather than evidence or argument, and avoid contentious paraphrasing. Paragraph 41 of the Amended Reply was responsive to the Defence and did not introduce a new case. Although both pleadings contained argumentative and unnecessary material, the defects were not sufficiently egregious to constitute abuse of process or obstruct the just disposal of the proceedings.
6. The Reply strike-out application was dismissed. Forty per cent of the costs of preparing the original Reply were disallowed. Costs relating to matters first introduced in that Reply were to be treated as if introduced by Amended Particulars of Claim when the original Reply was served.

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