ADS Securities LLC v Lars Windhorst

Where a defendant has failed to file an acknowledgment of service, the court may grant permission to apply for summary judgment if the claim was validly served, the court has jurisdiction, and the claimant has a legitimate reason for seeking summary judgment. Cross-border enforcement difficulties may constitute such a reason.

A defendant may attend a hearing under CPR 8.4(2), but cannot participate without the court’s permission. A proposed video link used for attendance does not necessarily involve giving evidence or conducting proceedings.

Summary judgment is appropriate where the defendant has no real prospect of defending the claim and there is no other compelling reason for trial.

ADS Securities LLC brought a Part 8 debt claim against Lars Windhorst under a revised settlement and rescheduling agreement dated 21 June 2021. The agreement appointed Tennor International Services B.V. (UK) as Mr Windhorst’s agent for service in London and provided for the exclusive jurisdiction of the English courts.

The claim documents and summary judgment application were served on Tennor. Mr Windhorst failed to file an acknowledgment of service. He sought an adjournment so that he could participate in the hearing by video link from the UAE, but no application for permission to participate had been made.

The central issues were whether the hearing should be adjourned, whether permission should be granted under CPR 24.4(1), and whether the admitted debt justified summary judgment.

1. Adjournment. The adjournment application was refused. CPR 8.4(2) permitted the defendant to attend the hearing, but not to take part unless the court gave permission. The defendant had not sought that permission. He could have attended by video link, and his concern about giving evidence by video link did not address the proposed use of the link for attendance. The application was made at the last moment and had no merit.
2. Permission to apply for summary judgment. Permission under CPR 24.4(1) was granted. The court adopted the guidance summarised in European Union v Syria [2018] EWHC 1712 (Comm). Relevant considerations included the opportunity already given to the defendant to participate, valid service, jurisdiction, and a legitimate reason for seeking summary judgment. Those requirements were satisfied. The claim had been validly served on the appointed agent, the settlement agreement conferred exclusive English jurisdiction, and the likely need for complex cross-border enforcement gave the claimant a legitimate reason to seek summary judgment.
3. Merits. The claimant’s case was overwhelming. Mr Windhorst had confirmed in writing that the debt balance was due and that he was jointly and severally liable for it. He had no real prospect of defending the claim, and there was no other compelling reason for a trial. Summary judgment was therefore entered for the claimant in the sums claimed, including the applicable interest.
4. Costs. The defendant was ordered to pay £90,000 on the standard basis.

Not stated in the judgment.