Practice and Procedure


PUBLISHED October 24, 2003

Summary judgment was given in favour of the defendant bank, in a claim by a beneficiary of the estate of a former customer of the bank. The claimant's allegations of misconduct by the bank in connection with the drafting of the deceased's will and the executor's discharge of the deceased's outstanding loans had no prospect of success at trial.Rehearing of applications by the defendant ('the bank') for permission to amend its defence and for an order striking out the claimant's ('B') particulars of claim or alternatively for summary judgment on B's claim. The action concerned borrowing from the bank by B's father ('F'). As security for loans, F had executed charges in favour of the bank over three properties, which he subsequently converted into a hotel, and assigned to the bank various policies of life assurance. The bank alleged that F's borrowing was finally re-scheduled by a written loan agreement of October 1995 signed by F and B's brother. After F died in 1996 the existing life assurance policies were realised. F's executors obtained an order for possession of the hotel and the balance of F's liability to the bank was discharged out of the proceeds of its sale. By his particulars of claim, B alleged that: (i) F did not sign the 1995 loan agreement and his signature was forged; (ii) the will used by the executors as the basis for obtaining the order for possession was ineffective; (iii) the hotel did not have to be sold to repay the sums borrowed by F; and (iv) the hotel was sold at an undervalue. He also alleged that it was the bank that put the executors up to making the will naming them as executors, to selling the hotel and to selling it at an undervalue.HELD: (1) The bank's proposed amendments did not significantly change the nature of its case and there was no reason why they should not be made. Permission to amend the defence was therefore granted. (2) The particulars of claim had to be struck out because: (a) they could not be described as a concise statement of the facts on which B relied as required by CPR 16.4; and (b) B made charges in relation to the executors' conduct that amounted to allegations of fraud and illegality, but were not adequately particularised. (3) The allegations regarding the bank's conduct in relation to the executors did not have any prospect of success at trial in the absence of any explanation as to the basis of the allegations and any evidence that the bank acted in a way that would be unusual for any bank to act. The same was true of the allegation that F's signature on the 1995 loan agreement was forged. It was also doubtful that B had any standing to make the allegations, even if he was a beneficiary of F's estate. It would be F's estate, acting through its executors, which had standing to make these allegations. None of the other allegations that emerged from the documents filed by B had any prospect of success. The bank was therefore entitled to summary judgment.Judgment accordingly.

[2003] EWHC 2438 (QB)