HT-2023-000254 - [2024] EWHC 2063 (TCC)

There is no dispute as to the legal test which must be applied on the Application. Where there is an application for reverse summary judgment or strike-out of a claimant’s case, the Court must consider whether the claimant has a realistic prospect of success. The issue raised by the Application is whether time ran from the insolvency of Vantage. If it did, Peabody accepts that the claim is time-barred and has no prospect of success. Both parties accept that the Insolvency Point is capable of summary disposal and does not involve any question of fact. Although I was not addressed on them, I have in mind the principles summarised in, for example, Easyair v Opal Telecom [2009] EWHC 339 (Ch).

NHBC submitted (and Peabody did not dispute) that if an application gives rise to a short point of law or construction then, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and the parties have had an adequate opportunity to address it in argument, it should “grasp the nettle and decide it”: Global Asset Capital Inc v Aabar Block SARL [2017] EWCA Civ 37 at [27]. NHBC submitted that it does not invite the Court to decide any factually contentious issue in its favour and against Peabody. Insofar as those submissions were directed at the Insolvency Point, I agree, and there is no dispute that I can and should resolve the Insolvency Point at a summary stage. But a determination of the alternative case would have required a decision on material which is factually contentious, as well as being incomplete, and which in any event (for the reasons I have explained) comes before the Court in a way which is unsatisfactory and not conducive to a fair summary disposal.