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Chancery Division dismisses application for strike out/summary judgment against claimant seeking to overturn £2.5m settlement agreement and consent order

30/11/16, Commercial

The Chancery Division has dismissed an application by a defendant for strike out/summary judgment in an action by a claimant for a declaration that two substantial settlement agreements entered into by him, and a consent order in respect of the second of these, were not enforceable and should be set aside.

The case shows the steep uphill task faced by a defendant trying to strike out a case or obtain summary judgment, even where the case of the claimant may appear at first sight to be one with little or no hope of success. The more complex the evidence the more difficult it is to persuade the court that the essential facts are clear and there is nothing to be tried.

This was the most recent in a series of applications since 2011 in acrimonious litigation between the parties, Pritpal Gill and Anami Holdings Ltd, involving two separate actions.

The present action was begun by the claimant in 2015 acting as a litigant in person. The first settlement agreement, dated in 2012 but, according to the claimant, backdated, was for £8 million, supposedly in settlement of an action begun in 2011 by the defendant to his current action alleging various fraudulent breaches in respect of property transactions. The claimant in the 2015 action alleged that the settlement agreement had in fact been entered into in 2013, at the suggestion of the defendant, as a sham transaction designed to defeat his creditors. He said that he got cold feet when he saw that the agreement, drafted by the defendant, had been backdated to 2012, and that he had therefore recovered the original, thinking that was the end of it. No consent order was ever made.

However, the defendant then proceeded in 2014 to use a copy of the settlement agreement to obtain a freezing order in its 2011 proceedings. The claimant says he subsequently entered into a further settlement agreement for £2.5m in 2014, as a result of the economic duress caused by the freezing order, and also repeated threats to him and his family. This later settlement agreement was embodied in a consent order. Under its terms neither party was to take any further steps to litigate against the other. There then followed a series of applications and further freezing orders against the present claimant in connection with the implementation of the terms of settlement. This led eventually to the claimant’s 2015 action to have the two settlement agreements and the consent order in respect of the 2014 settlement set aside. The defendant retaliated with applications under CPR 3.5 and 24, based on the absence of a properly pleaded case, abuse of process, and no real prospect of success.

The home-made particulars of claim were extremely long, contained a series of highly prejudicial allegations against the alleged beneficial owner and controller of the defendant, and causes of action which were not easy to discern, including duress, economic duress, intimidation and, in the alternative, an accepted "rescission" of the 2014 settlement agreement by continuing to litigate. At the hearing counsel for the claimant suggested various amendments which could and would be made to the Particulars of Claim to ensure it was properly pleaded.

The hearing of the application lasted 2.5 days. There were around 20 affidavits and statements from various witnesses including the protagonists, some with lengthy exhibits, and ‘core’ bundles running to around 700 pages. Court reading time had been one day. The extempore judgment occupied 3.5 hours.

The judge held that a coherent case could be pleaded, and declined to strike out the claim. He found that there were sufficient indications in the evidence before him to indicate that there might be something in what the claimant was saying about the sham 2012 settlement agreement, and subsequent intimidation and economic duress in connection with the subsequent 2014 settlement agreement and consent order. The facts of the matter could only be established at trial. He could not conduct a mini-trial of the issues on the documents to establish those facts.

The judgment will be available in mid-December.

Peter Irvin appeared for the claimant on a direct access basis.

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