Andrew Edward McCarthy v Graham Brian Proctor

Where limitation is the sole basis of challenge, expiry of the limitation period does not mean that a claim discloses no reasonable grounds under Civil Procedure Rules 1998, rule 3.4(2)(a). The appropriate routes are a limitation defence, a preliminary issue, or, in a very clear case, strike out for abuse under rule 3.4(2)(b) or summary judgment.

In an appropriate case, the court may determine limitation summarily where the pleaded facts are assumed to be correct, the issue is a short point of law, and the parties have had a fair opportunity to address it. An acknowledgment must satisfy the statutory requirements and cannot revive an already barred claim. Part payment must be an act of the debtor or the debtor’s agent. For contractual choice of law, the court may apply the law of the country with which the agreement is manifestly more closely connected.

Mr Proctor brought Part 20 claims against Mr Jones in debt and restitution arising from alleged agreements concerning beneficial interests in a Dubai apartment and a villa in Mallorca. Mr Jones applied to strike out the claims as time-barred under rule 3.4(2)(a) of the Civil Procedure Rules 1998. He later sought to amend the application to rely also on abuse of process under rule 3.4(2)(b) and summary judgment.

Mr Proctor relied on alleged acknowledgments, part payment, mistake and the possible application of Dubai law. The issues were whether the application could fairly be dealt with under the additional procedural bases and whether the claims had any realistic prospect of avoiding the limitation defences.

1. Application amended and claims disposed of summarily. It was fair and proportionate to consider rule 3.4(2)(b) and Part 24. The application, evidence and submissions had made the limitation basis clear, and Mr Proctor had addressed the relevant issues. The parties had an adequate opportunity to deal with the short points of law.
2. Applicable procedural test. In a case of this kind, the tests under rule 3.4(2)(a) and Part 24 are common. The court must consider whether there is a realistic, rather than fanciful, prospect of success. It must avoid a mini-trial, while deciding a short point of law where the evidence is sufficient and the parties have been heard.
3. Limitation exceptions. The March 2016 email was not an acknowledgment because it admitted neither a defined debt nor an amount ascertainable by calculation. Later alleged acknowledgments could not revive claims already barred. The alleged application of the sale proceeds was an act by Mr Proctor, not Mr Jones; silence could not make it part payment by Mr Jones. Mistake was not an element of the pleaded causes of action, and in any event it could have been discovered with reasonable diligence by December 2017.
4. Applicable law. Assuming Dubai law would assist Mr Proctor, the pleaded 2011 agreement concerned two properties, with most and almost all continuing obligations relating to the Mallorca villa. Under Article 4(3) of Regulation (EC) No 593/2008, the agreement was manifestly more closely connected with Mallorca. The Dubai-law argument therefore gave the claims no realistic prospect of avoiding limitation.
5. Mr Jones’s claims were struck out as an abuse of process under rule 3.4(2)(b). A draft order was to be filed within 14 days, with consequential matters dealt with by written submissions if necessary.