Summary judgment: A cautionary tale

I stumbled across the case of Parkway Construction Ltd (In Liquidation) vs Howard De Walden Estates Ltd 2014] and thought it served as a glorious reminder of what summary judgment was – and is – all about.

The case was before Mr Justice Akenhead and it appears the opportunity to spell out to would be claimants the implications (in particular costs) of misguided proceedings was not to be missed.

The proceedings were commenced by Parkway Construction (“Parkway”) who were the appointed builders on an alterations and repairs contract in London against the contract administrator who was Howard De Walden (“HDW”). The contract sum was circa £1.5 million and included substantial delay damages of £24k per week and was placed under a standard JCT Intermediate form of contract. As the claim was in the courts it is probably unsurprising that things did not go to plan. It appears that the project was not finished by the contract completion date and the administrators were appointed in March 2009 whereupon it seems the project was still incomplete (at least to some extent).

During the proceedings it appears that Parkway made rather a hash of things. I doubt that Mr Justice Akenhead is often caused to write such a damning analysis

The proceedings appear to have commenced on 3 March 2014 with the particulars of claim issued by Parkway following a very drawn out Pre-Action Protocol which appears to have commenced some time in December 2010. During the Pre-Action processes it was found that various part submissions had been made by Parkway in an attempt to demonstrate an extension of time claim and, whilst not particularly mentioned within the judgment, it appears that other claims were made (presumably for variations etc. and possibly loss and expense.) It also emerges that at least two without prejudice meetings were entered into by the parties.

During the proceedings it appears that Parkway made rather a hash of things. I doubt that Mr Justice Akenhead is often caused to write such a damning analysis of the particulars of claim in which he identifies an admitted overstatement of some £500k, that the paragraph numbering was awry, that it attached unhelpfully 400 pages of pre-action letters which gave cause to confirm that in fact a dispute of fact clearly exists, that “it does not as such identify any pleaded case” and that the “proceedings as formulated were verging on the hopeless with little or no prospect of success”.

It is, however, perhaps too critical of me to state these inadequacies within the particulars of claim as it appears that Parkway were deficient in preparing and presenting its claim(s) during the contract (to such an extent that it appears that HDW genuinely had a hard time making its respective assessments upon the information provided) and hence the claimant’s solicitor only had very sparse information to work with.

In short it appears that there was in fact serious dispute of fact and hence it was stated that the whole application was misconceived and application should not have been made for summary judgment. To reinforce the point, an award of costs was made upon an indemnity basis in favour of HDW, although in practise there is relatively little hope of recovery as there is unlikely to be any money available.

The judgment serves as a cautionary tale as it appears that Parkway started the proceedings on the hope that it would bring the parties together to thrash out a settlement. However it did nothing more than add costs to an already dire situation.

Ryan Greening is a director at Bennington Green