Arthur Vivian George & Ors v The Corporation of the Hall of the Arts and Sciences

Summary judgment should be granted only where the claim or defence has no realistic prospect of success. A defence based on implied consent, acquiescence or laches may require a trial where the evidence shows prolonged inaction, knowledge of the relevant conduct, and reliance by the opposing party.

The court may decline an injunction where there is a real prospect that forthcoming legislation will resolve the position, or where granting relief would be oppressive because it would disrupt existing contractual commitments. Declaratory relief is discretionary and should be refused where it serves no useful purpose or risks pre-judging unresolved defences.

The claimants held permanent-seat rights at the Royal Albert Hall under the 1867 charter. The rights were subject to the limits in section 14 of the Royal Albert Hall Act 1966, which permitted the Corporation to exclude Members from specified numbers of events.

The Corporation admitted that, for many years, it had operated an Exclusives regime exceeding those statutory limits. The claimants sought summary judgment for an injunction, a declaration, an inquiry as to damages and an interim payment. The Corporation relied on consent, acquiescence and laches, and argued that an injunction would be inappropriate because of existing contracts and a private Bill then proceeding through Parliament.

The central issues were whether those defences had a realistic prospect of success, whether an injunction should be granted, and whether the proposed declaration would serve a useful purpose.

1. Summary judgment. The applicable test was that stated in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). The court must decide whether the relevant case has a realistic, rather than fanciful, prospect of success, without conducting a mini-trial. It must consider both the evidence before it and evidence reasonably expected to be available at trial.
2. Consent and acquiescence. The claimants’ rights were properly analysed as a form of licence, consistent with Customs & Excise Commissioners v Zinn [1988] STC 57. Their prolonged knowledge of the Corporation’s practice, failure to object, approval of the annual Memorandum and Guidelines, and reliance on a forward-looking booking horizon gave the Corporation a real prospect of establishing implied consent or acquiescence. The history required the thorough factual investigation available only at trial. The same evidence gave the Corporation a real prospect of showing that any withdrawal of consent in 2024 did not operate immediately.
3. Injunction. There was a real prospect that the injunction would be unnecessary if the private Bill became law. There was also a real prospect that unwinding existing Exclusive bookings would be oppressive, particularly where contracts had been made in good faith and events would have to be reallocated. Delay and the possible operation of laches were material considerations.
4. Declaration. Declaratory relief was discretionary. Applying the principles summarised in Rolls-Royce v Unite the Union [2009] EWCA Civ 387 and the notes to CPR 40, the proposed declaration would serve no clear useful purpose because the Corporation admitted its non-compliance. The word “unlawful” might also pre-judge the unresolved consent and acquiescence defences.
5. The claimants’ application for summary judgment was dismissed. The court did not determine the damages valuation or the possible requirement under CPR 19.3 for other Members to be joined.

First-instance application for summary judgment. No earlier decision in the same proceedings was stated.