BioConstruct Ltd v Grays Thurrock Properties Ltd

Summary judgment and strike out are inappropriate where a pleaded contractual claim has a real prospect of success and the proposed grounds depend on disputed evidence or legal argument. A reply may properly advance a responsive “Yes, but” case which answers a defence, provided it does not introduce a new cause of action. The court should not conduct a mini-trial on an application for summary judgment. Where any material argument gives the claim a real prospect of success, relief directed only at the pleaded remedy should not be struck out.

BioConstruct claimed payment under a subcontract for the construction of an anaerobic digestion plant. It claimed sums relating to Milestone 14 and subsequent milestones RR1 and RR2, together with declarations concerning take-over, performance testing, force majeure and the defects liability period.

GTP applied for strike out under CPR 3.4(2)(a) or summary judgment under CPR 24.3. It argued that BioConstruct’s pleaded case did not establish achievement of Milestone 14 and relied on four matters, including the meaning of “immediately preceding”, the use of Design Feedstock, Steady State Operation and take-over documentation. The claim had been issued in November 2023, pleadings had closed, and the case management conference had taken place before the application. The central issue was whether the claim or relief was plainly defective or had no real prospect of success.

1. Application dismissed. The application failed under both CPR 3.4(2)(a) and CPR 24.3.
2. GTP had attacked the relief sought rather than identifying particular paragraphs or sentences in the pleading which were legally defective or doomed to fail. If one of the proposed arguments gave BioConstruct a reasonable prospect of success, there was no basis for striking out the relief.
3. The Reply did not introduce a new cause of action. The contractual claim for payment appeared in the Particulars of Claim. The Reply’s interpretation of “immediately preceding”, together with its supporting factual matters, was responsive to GTP’s denial and constituted a permissible “Yes, but” argument. The approach in Martlet Homes Ltd v Mulalley & Co Ltd was applied against GTP.
4. The proposed interpretation of “immediately preceding” was supported by authority. It was therefore impossible to conclude that the claim had no real prospect of success on that issue.
5. The remaining arguments concerned whether the Design Feedstock had been used, whether Steady State Operation had been demonstrated and whether the required take-over documentation had been provided. They raised disputed issues of fact apparent from the witness statements and skeleton arguments. Such matters were not apt for determination on summary judgment, since the court should not conduct a mini-trial and could not conclude that there was no real prospect of success where evidence was disputed.
6. No defect in the claims for declarations or payment was identified which justified strike out. Costs were to be agreed or determined subsequently.

This was a first-instance application in ongoing proceedings. The claim was issued on 10 November 2023, the case management conference took place on 25 October 2024, and trial was listed for October 2026.