Summary judgment

North East Lincolnshire BC v Millenium Park (Grimsby) Ltd (CA TLR 31 October)

Where the court, on an application under CPR Part 24 in a claim for specific performance of development works, was faced with a real, and not fanciful, case of impossibility to perform, it was not entitled to undertake a mini-trial to determine whether the case was properly one of such impossibility. Part of a development agreement required the defendants to construct a roundabout for access to off-site highway works. Following the company’s difficulties in obtaining pre-lettings and forward sales in the proposed development, the council began proceedings claiming specific performance. The company contended it had no assets of its own and depended on finance from a third party which was unwilling to advance finance in the circumstances. The need for a roundabout was uncertain, it might be unreasonable to build it and to insist on the company expending on it. There is a settled practice that the remedy of specific performance requires an exceptional case. The judge had erred in his discretion in seeking to find an exceptional case for the grant of specific performance on an application for summary judgment and in deciding the matter as if it were a final hearing of the action.