Practice and Procedure


PUBLISHED January 23, 2003

A defendant's application to strike out the claimant's particulars of claim or to be granted summary judgment was dismissed where further investigation into the case was required.Defendant's ('B') appeal and claimant's ('E') cross appeal against a judgment of Deputy Master Behrens, made on 2 August 2002. B had applied to strike out E's particulars of claim or be granted summary judgment. Following a hearing B was granted permission to appeal and ordered to pay the E's costs. E was the lease hold owner of land on which it had constructed a golf club. B was the solicitors' firm retained to act on E's behalf in connection with the lease. The disputed issue related to a rent review clause contained in the lease. Under clause 4.4 either party could serve a six-month notice prior to a market review seeking a rent review on a market rent basis. However, although under clause 4.2.3 certain issues were disregarded, any improvements carried out pursuant to an obligation were not. This meant, in effect, that E would be locked into a 100-year lease paying rent on the developed value of the land which they would have improved at their own cost, when they believed they would have been paying rent on the value of the undeveloped site. E contended that they had not agreed to this and that the inclusion of this clause in the lease was the result of B's negligence.HELD: (1) It was most unlikely that E would have agreed to such a radical change in the basis of their rent. (2) B had misunderstood the original basis for the rent and consequently was at cross purposes with their client. (3) A definite conclusion could not reached without a full investigation into the parties relationships, discussions and the lease itself. (4) Under CPR 24 the reasons above could qualify as "some other reason" and should go to trial.Appeal dismissed.

[2003] EWHC 41 (Ch)