Arran Coghlan & Anor v Lexlaw Limited

On a summary judgment application, the court must identify the case actually pleaded. Where an outstanding application to amend may affect whether a claim has a real prospect of success, the amendment application and summary judgment application should ordinarily be considered together, or the latter should be adjourned.

A court should not refuse summary judgment by relying on an unpleaded case. Witness statements identify factual matters but do not replace statements of case. Where the first-instance decision rests on an unpleaded case and the amendment application has not been determined, the proper course may be to set aside the order and remit the applications for rehearing.

The Respondents brought claims for breach of confidence, breach of fiduciary duty and breach of the GDPR after the Appellant, their former solicitors, notified opposing solicitors of an asserted equitable lien over the fruits of litigation.

The County Court dismissed the Appellant’s application for summary judgment and strike out. The Appellant appealed, contending that the judge had relied on an unpleaded case concerning the alleged failure or loss of the lien. An application by the Respondents to amend their particulars of claim had been outstanding but was not heard with the summary judgment application.

The central issues were whether the first-instance decision could stand and how the two applications should be managed.

1. Appeal allowed procedurally. The order dismissing the summary judgment application, together with the associated costs order, was set aside. The application was remitted to the County Court at Central London for rehearing with the amendment application.
2. Statements of case are important on summary judgment because they identify the issues which are presently in dispute. Where proposed amendments may affect whether a claim has a real prospect of success, the court should determine the amendment application before deciding summary judgment, or adjourn the summary judgment application so that both matters can be heard together. The approach in Mishcon de Reya LLP v RJI (Middle East) Limited [2020] EWHC 1670 (QB) supported that conclusion.
3. The first-instance judge had addressed a case that was not pleaded in either the existing or proposed amended particulars of claim. That was impermissible. Witness statements were not statements of case and did not cure the pleading deficiency.
4. The pleaded confidentiality and fiduciary duty claims did not explain how sending a letter asserting an equitable lien constituted the alleged breaches. The court also had difficulty with the reasoning that an offer, but no actual provision, of an undertaking under clause 17.2 caused the lien not to be preserved. These matters were not finally determined on the appeal.
5. The GDPR claim was sufficiently different to be intelligible on its pleading, but the basis on which it had been held reasonably arguable was unclear. Because it overlapped with the other claims and the application had to be reheard, it was also remitted rather than left standing.
6. The rehearing was to be before a different judge, with sufficient time for proper consideration. The court reserved consequential costs and remission directions.

• Chancery Appeals (ChD): The appeal against the County Court order of 29 May 2025 was allowed procedurally. The order was set aside and the application was remitted to the County Court at Central London for rehearing with the amendment application.
• County Court at Central London: His Honour Judge Monty KC dismissed the application for summary judgment or strike out and made a costs order. That decision was set aside.