Peabody Trust v National House-Building Council

Permission to appeal from a summary judgment decision requires a real prospect of success on at least one proposed ground. An appellate court is unlikely to interfere with case-management decisions where the evidence is incomplete, the argument has not been properly developed, the hearing time is inadequate, or procedural fairness requires factual issues to be deferred. A limitation trigger based on when an insured had to pay more is not automatically converted into a trigger based on insolvency or fraud. Where the factual trigger cannot fairly be determined summarily, the court may defer both the factual issue and any unnecessary question of contractual construction under unknown Part 24.3(b) and its general case-management powers.

The claimant applied for permission to appeal against an earlier judgment on a summary disposal application concerning the operation of an insolvency-related limitation issue under insurance policies. The earlier court had held that time did not run from insolvency or fraud alone, but from the point when the insured had to pay more, or sums paid were lost. It had declined to determine summarily when that point arose on the available evidence and had deferred construction of the phrase had to pay more.

The defendant advanced five proposed grounds, including challenges to construction, the refusal to determine the factual limitation issue summarily, and the court’s case-management approach. The central question was whether any ground had a real prospect of persuading the Court of Appeal to interfere.

The application for permission to appeal was refused.

1. Applicable test. The sole question was whether there was a real prospect of persuading an appellate court on any proposed ground. The fact that the judgment had attracted attention in legal or trade publications did not provide a compelling reason for permission, particularly where the publications mainly treated the judgment as useful clarification.
2. Insolvency point. The earlier decision did not hold that time ran from insolvency or fraud simpliciter. The identified trigger was the point when the insured had to pay more, or sums paid were lost. The court had not decided that this necessarily meant the date on which sums were actually paid.
3. Summary determination and construction. The factual question could not fairly be determined summarily because the evidence was incomplete, its presentation was unsatisfactory, proper argument had not been heard, and the time estimate was inadequate or had become inadequate. It was therefore open to the court under Part 24.3(b), the overriding objective and its general case-management powers to defer the factual issue and the related construction question.
4. Grounds of appeal. The proposed grounds disclosed no real prospect of success. The court’s approach involved construction, procedural fairness, practicality and case management. There was no realistic prospect of appellate interference with the decision to proceed without an adjournment, particularly since no adjournment had been sought and the defendant had originally advanced the issue as a discrete point.
5. The issues were deferred until trial, subject to the possibility that further evidence or amended pleadings might permit a shorter route.

The judgment records an application for permission to appeal from the court’s earlier summary judgment decision, which had been heard in June 2024. The citation of that earlier decision was not stated in the judgment.