Agents Mutual Ltd v Moginnie James Ltd

This is a short ruling on a point which has arisen during the course of the hearing on 19 December 2016 of an application by the Claimant by notice dated 16 August 2016 for summary judgment on the Defendant’s counterclaim.

In the main action, the Claimant has sought an injunction to restrain the Defendant from committing what it says is a breach of contract. The Defendant has denied the breach, but has also counterclaimed that the contract has been rescinded for misrepresentation, or has been terminated for repudiatory breach of the terms incorporating the representations complained of into the contract. There is also a (counter) claim that a particular term of the contract is anti-competitive. The Claimant says that rescission is not possible because of affirmation, and that the representations were not incorporated into the contract. Most importantly for present purposes, the Claimant relies on a written disclaimer in pre-contractual materials as having the effect that no reliance on the representations is possible, whether in tort or in contract.

At the hearing of the application for summary judgment, after hearing the Claimant in support of its application, I was asked by the Defendant to rule on the scope of the Claimant’s application for summary judgment. I heard both sides on that question, and I then gave an extempore ruling. Because by then we had exhausted the time set aside, I adjourned the rest of the hearing to 9 January 2017.

My ruling was to the effect that, looking at the terms of the application notice in context, that application related to the effect of the disclaimer, and did not include seeking summary judgment on the grounds of either (i) affirmation of the contract (precluding rescission), or (ii) non-incorporation of the representations as terms of the contract.

After I had given my ruling, Mr Alan Maclean QC, for the Claimant, made an immediate oral application to me to amend his application, to add those further grounds. In response, Mr Thomas Grant QC for the Defendant asked for time to take instructions and to formulate arguments to resist that application. Since we were not going to sit further on that day, I allowed him to lodge written submission by 4 pm on Thursday 22 December 2016, which he did. I have read those submissions. This therefore is my further ruling on the application to amend the application. I am handing it down in writing now, so as not to prejudice the hearing on 9 January 2017.

Mr Grant QC argues that applications to the Court simply cannot be amended. Instead, they amount to further, free-standing applications. He says it is as if the Claimant was issuing further application notices today. Ordinarily this would not matter, and we would not be arguing about it. But in this case Roth J ordered on 27 July 2016 (inter alia) that the competition law parts of the proceedings be transferred to the Competition Appeal Tribunal (CAT), that any summary judgment application had to be made by 4 pm on 16 August 2016, and that the remainder of the chancery proceedings be stayed pending the disposal of the CAT proceedings. (They are to be heard in February.) The summary judgment application actually before me on 19 December was issued shortly before the deadline on 16 August. Any further application now obviously would not be issued before the deadline, and would accordingly be caught by the stay. It therefore matters.

No authority was cited to me on the question whether an application notice under the CPR may be amended once issued, and I am not aware of any. Mr Grant QC says that CPR Parts 23 and 24, dealing with ordinary applications and summary judgment respectively, do not provide for amendment, and that Part 17, dealing with the amendment of statements of case does not apply and that therefore there is no power to amend such a notice.

I agree with him about Parts 17, 23 and 24. In particular, an application notice is not a statement of case for the purposes of Part 17: CPR rule 2.3(1), and see also Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd[2015] EWHC 2874 (Ch), [17]. But I do not agree that it follows that there must be no power for the court to permit and amendment of an application notice.

I do not need to consider the question of whether and how far the inherent jurisdiction of the court extends to such a case. CPR Rule 3.1(2)(m) provides that:

“Except where these Rules provide otherwise, the court may –

(m)

take any other step or make any other order for the purpose of managing the case and furthering the overriding objective…”

It seems to me that amending an application before it is decided is well within the scope of this power. Deciding questions about summary judgment is part of the court’s management of the case. In my judgment it will often further the overriding objective if the court allows all issues between the parties about summary judgment to be decided at the same time, rather than require the applicant to issue a fresh application.

So I turn to the (fact-sensitive) question whether it is right to exercise this power in the present case. There is no doubt that the Claimant could issue a fresh application notice for summary judgment based on the extended grounds, which ex hypothesi will not have been adjudicated upon. But, given the terms of the order of Roth J, this could not be done until after the CAT proceedings have been dealt with. There is also no doubt that in general terms it is more efficient for a summary judgment application to be heard once only, on all possible grounds, rather than on two or more occasions, dividing the grounds up between them.

But here it is also the case that before Roth J the exception of the summary judgment application out of the general stay on the chancery proceedings was put on the basis of the alleged effect of the disclaimer in issue in this case, and not at all on the basis of the other two points now raised. What the judge would have thought of the summary judgment argument based on those points as well cannot now be known. The Defendant appears to have agreed to the order of 27 July 2016 on that restricted basis. The other grounds now desired to be raised were not adverted to. There does not appear to have been any clear intimation by the Claimant to the Defendant of the intention to raise those other points until a few days before the hearing itself. Indeed, the evidence of Mr Springett for the Claimant in support of the application was to say that “the foundation of the present application” was reliance on the disclaimer.

In these circumstances I do not think it is right to permit an amendment of the summary judgment application to raise the new points. The new points have been raised late, and what the judge and the defendant would have done had they been raised at the time cannot now be known. Were I to allow the amendment, the main application would probably have to be further delayed to enable the Defendant to put in further evidence, and the hearing of 9 January 2017 would not be effective. Lastly, although I have not yet finished hearing, let alone determined, the summary judgment application, nevertheless, if the Claimant should fail, it may be open to it to issue a fresh application once the stay has come to an end. The Defendant suggests as much in its written submission. (I say “may” because I have not heard any argument on whether there would be any objection to this course, and I am therefore not deciding anything on that point.)

For these reasons I dismiss the application to amend the summary judgment application to add the further grounds.

After I had handed down this ruling today, by email, I was informed that the parties had just managed to settle their differences, and compromise the whole proceedings (including those before the CAT). I make this ruling public therefore only because it deals with a point of practice not, so far as I am aware, dealt with elsewhere. Obviously there will not now be a hearing on 9 January 2017.