Advocacy Script PDF

Preview

Summary

Advocacy Script...

Description

Advocacy Script My Lord, my name is XX, I appear on behalf of Cymbal of Strength Limited, the Claimant in this matter. My learned friend, XX, appears for Derrington Entertainment Ltd, the Defendant. I appear on behalf of the Claimant to make an application against the Defendant for summary judgment pursuant to Civil Procedure Rule 24.2(a)(ii) and (b). Can I check that my Lord has the hearing bundle? In the bundle you should have the Particulars of Claim, a Defence, an application notice, witness statement of Jez Xaaron Viper in support of the Claimant’s application together with its exhibit, and the witness statement of Alistair Pink on behalf of the Defendant. The draft order sought today has also been provided to your Lordship. My Lord, in terms of the order of play today, I will begin by setting out the relevant background to this case. I will then move on to set out the applicable legal test under CPR 24.2 and then will make two submissions in support of the Claimant’s application. Relevant background The Claimant is a company representing the legal and financial interests of the band called “Slippery Rails”. The Defendant is a manufacturer and supplier of entertainment infrastructure, in this instance a transportable stage. On 22 June 2017 the Claimant and Defendant entered into a contract for the purchase of a transportable stage. My Lord if I can refer you to the Particulars of Claim at page 4 of the bundle, you will see the relevant clause, clause 6, of the contract is provided for at paragraph 3. It states that the Defendant was to provide: “a transportable stage on a theme of ‘post-industrial horror’, suitable for use by Slippery Rails” 20 date UK leg of its 2018 tour. My Lord you will see at paragraph 4 of the Particulars that the agreed price under the contract was £340,000 plus VAT, payable immediately by the Claimant upon delivery of the stage. The contract was entered into after two weeks of discussion and Mr Viper records this at paragraph 2 of his witness statement, which you will find at page 10 of the bundle my Lord. Mr Viper had been responsible for negotiating the contract with Mr Pink of the Defendant. Mr Viper explains at paragraph 4 of his witness statement his concerns when contract with the Defendant that they did not quite appreciate the opportunity provided to them under the contract – this stage was to be built for a renowned band who had been leading figures in the Cornish Metal industry for over 40 years. It is Mr Viper’s view that the Defendant appeared only interested in cost cutting as opposed to the factors relevant to the appearance and construction of the stage. Nevertheless, the contract was entered into and the stage was delivered on 2 April 2018. The Claimant paid, by way of electronic transfer, the full amount outstanding under the contract on the same day.

The Defendant assembled the stage by 11.30pm on 2 April 2018 – and it was the following day when Mr Viper discovered exactly what had been delivered. If I can refer your Lordship to paragraphs 5 and 6 of Mr Viper’s statement at page 11 of the bundle, you will see that he found that the stage was “very different” to that he had requested from Mr Pink. At the time of contracting he had made clear to Mr Pink that the stage provided pursuant to the contract must be old and rugged with intense colours of mechanical decay. He requested that the stage be made of scaffolding poles and old monster truck wheels which he “mentioned a few times” to Mr Pink. The stage delivered was of a weak orange and made of fibreglass, and did not look rugged. Despite the numerous inadequacies with the stage, the Claimant was forced to use it given that the first date of the tour was on 18 April 2018 and there would be insufficient time to build a new stage, or find a new supplier. Mr Viper’s concerns were confirmed when a review of the fifth night of the tour was poor and was heavily critical of the stage. This review can be found in the exhibit to Mr Viper’s statement at page 14, but I will take your Lordship back to this in my submissions. The second issue the Claimant encountered was in the dismantling and moving of the stage. It was a term of the contract that the stage must be readily transportable as the tour was taking place at a number of different sites. As Mr Viper records at paragraph 8 of his witness statement, the stage was both difficult to dismantle and to reassemble. The bolts to the stage had been engineered in a fashion which meant that minor temperature variations caused them to expand or contract, and therefore make them almost impossible to remove. The number of components was a particular problem – which Mr Viper states was twice as many as was normal for this type of stage at paragraph 9 of his statement. The third issue was that the stage was not fit for purpose not only in terms of it being transportable, but durable too. On 25 May during show 5 of the tour, the roof of the stage collapsed. The stage took 3 weeks to repair with the Claimant being forced to add support to the stage, and 2 shows in June 2018 had to be cancelled and refunded. This impacted the ticket sales for later shows in the tour. This is therefore a simple and straightforward breach of contract claim. The Claimants complied with their obligations under the agreement by making payment, but they soon discovered the stage was extremely inadequate, of poor quality and not fit for the purpose described to the Defendant. The legal test My Lord, I will now take you to the relevant CPR provisions and case law in relation to the test for summary judgment. if I can ask you to turn to CPR 24.2 in the White Book. This rule confirms that the Court may grant summary judgment if … (a) it considers that ... (ii) the Defendant has no real prospect of successfully defending the claim AND (b) there is no other compelling reason why the case should be disposed of at a trial.

My Lord, there are a number of cases contained in the Authorities Bundle that I will briefly take you to which deal with the approach the court has taken when considering whether the test has satisfied. I will keep this relatively brief. In relation to the requirement that the defendant has “no real prospect of success” in defending the claim, Swain v Hillman held that the chance of defending must be “real, as opposed to fanciful”. In Three Rivers No 3 the House of Lords decided that a “fanciful” case would be one entirely without substance. “Real” means that the case put forward by the defendant must be more than a good arguable case, as was held in International Finance Corp v Utexafrica Sprl, ED & F Man Liquid Products v Patel. The second strand requires that if the Claimant satisfies your Lordship that the Defendant has no real prospect of successfully defending the claim, the court must also be satisfied that there is no other compelling reason for the matter to be disposed of at a full trial. Miles v Bull held that there was a compelling reason to proceed to trial where the applicant’s conduct was questionable. For the reasons I will set out in my submissions, the Claimant submits that the test has been satisfied: the Defendant has no real prospect of defending this breach of contract claim, nor is there any other compelling reason why such a case should be heard at trial. My Lord, before I depart CPR 24.2 and move on to my submissions, I would like to briefly draw our attention to CPR 24.3 (2). This provision sets out a list of cases where the court is precluded from granting summary judgment against a Defendant; this case is a breach of contract claim and is not included in the list of exceptions at CPR 24.3(2). Tiuta International Ltd v De Villiers held that summary judgment was not available where the case concerned difficult questions of law and the facts could only be borne out at a full trial: as I will explain in my submissions, this is not a case which falls into this territory. Submission One: Defendant has no real prospect of success. My first submission, my lord, is that the Defendant has no real prospect of defending the claim. In relation to this submission I will briefly go through three points. First – the Defendant to these proceedings is the appropriate defendant. Second – There has been an obvious and blatant breach of contract by the Defendant. Third – all evidence is before the court and no other relevant evidence will be available upon further investigation. The Defendant is appropriate defendant Turning to the first point, the Defendant is the appropriate defendant because it entered the contract with the Claimant, and I have already taken your Lordship to the relevant provisions of the same. The Defendant makes no argument to the contrary. There has been a breach of the contract by the Defendant

In relation to the second part of this submission, the Claimant has complied fully with their obligations under the Agreement and only the Defendant has acted in breach. Those breaches were as follows: First, a breach of a clear term that the stage should be designed according to the specifications set down by the Claimant. The Claimant specified that the stage was to be industrial, with intense colours and even specified that it should be compiled from scaffolding and monster car wheels. Paragraph 3 of Mr Pink’s witness statement (page 15 of the bundle) confirms that this was a key term and he was aware of what the Claimant had specified. He states “Jez kept coming back to rusty scaffolding and monster truck wheels”, yet the Defendant included neither of those components in the stage design. Mr Pink also confirms that the stage was not an intense colour, but pale and lighter than he wanted at paragraph 4 of his statement. He appears to blame this on the Defendant’s cost cutting under the contract. At paragraph 3.1 of the Defendant’s defence (page 6 of bundle), it states the stage was made from fibreglass – a material very different to that requested by the Claimant. The Defendant confirms this was a “cost effective” measure. If I can take your lordship to the review of the concert at page 14 of the bundle. Your lordship will see the concert was given a 2.5 star rating and this was a result of the criticism of the stage: the review states “I wondered why they had chosen to perform on what appeared to be a rough plastic grapefruit coloured volcano studded with shiny car parts”. Second, the stage was to be transportable. The stage was compiled of improper material to allow for it to be easily transportable and there were significant delays in dismantling and re-assembling the stage during the tour. This is specified at paragraph 6.2 of the Particulars. Third, the construction of the stage was not robust and resulted in its collapse, meaning two shows had to be cancelled and tickets refunded. The review I took your Lordship a moment or two ago described the horror of the collapse. As a consequence of these breaches, the Claimant has suffered significant loss – specified at paragraph 7 of the Particulars. There is no defence available to the Defendants – the Claimant was clear as to the specifications and stage it required, and although the Defendant delivered on time, it failed to deliver what had been requested and what was the key terms of the contract. All evidence is before the court Finally, all evidence in relation to this matter is before the court. As I highlighted to your Lordship when taking you to the legal test for summary judgment, the court may be minded where further investigation could reveal additional evidence to deny an application for summary judgment.

This is not the case here – it is a simple breach of contract claim in relation to a straight forward agreement, with all evidence having been put before the court. Additional investigation will not change that position – the Claimant has put all evidence before the court detailing the nature of the breach, and the Defendant will not be able to put anything additional before the court than the statement it has provided today. Submission Two: No other compelling reason for the case to proceed to trial. My second submission is that there is no other compelling reason for the case to proceed to trial. This case does not concern a complex area of law, nor is there any question or suggestion by the Defendant that the Claimant’s conduct has been improper or unconscionable. Those are my submissions my Lord. In summary:    

The Defendant’s defence has no real prospect of success and is fanciful – it clearly breached the contract; All evidence is before the court, with no additional evidence available which could support the Defendant’s case; The Claimant complied with the Agreement – the Defendant has not; There is no other compelling reason for a trial.

The Claimant invites the court to make an order for summary judgment. [DEFENDANT SUBMISSIONS] [REPLY SUBMISSIONS] IF YOU GET AN OPPORTUNITY TO RESPOND TO THE DEFENDANT, USE THE RELEVANT POINTS BELOW DEPENDING ON THE SUBMISSIONS: If the Defendant alleges the design of the stage was adequate:  

Take the judge to paragraph 5 of Mr Viper’s statement and quote it. He was clear to the Defendant what he required in the stage. Take the judge to paragraph 3 of Mr Pink’s statement – he knew what the stage was to look like and be made of, but the Defendant failed to comply with that contractual obligation.

If the Defendant alleges the stage was easy to assemble and disassemble:  

Take the judge to paragraph 8 of Mr Viper’s statement and quote some of the key points. Take the judge to paragraph 7 of Mr Pink’s statement. He says that he used materials inappropriate for a transportable stage in the name of safety, but as confirmed in the evidence, the stage collapsed. The stage was wholly unfit for the purpose specified by the Claimant, and not even of a suitable condition in respect of what the Defendant had intended.



Go to paragraph 8 of Pink’s statement – Defendant relies on the fact the stage was moved, but this is a literal interpretation of the word transportable rather than looking to what was intended by “transportable” in the context of the discussions between the parties prior to contracting.

If the Defendant alleges it is not responsible for the collapse of the stage: 

Refer back to paragraph 7 of his statement and say he suggests the Defendant designed the stage in a way that put safety first, but it clearly failed in this regard.

If the Defendant argues that more evidence is available: 



The Claimant does not accept that any further investigation is required. This is a simple, straightforward claim and the Claimant and Defendant have put all available evidence before the court. Any further investigation by either party will not lead to any new evidence – only additional cost and will be an inefficient use of the court’s time if it is to be occupied with further substantive proceedings. If the Defendant had more evidence it would have been brought to the court’s attention and put into evidence.

COSTS [If you win and are given an opportunity to make submissions on costs, say the following] My Lord, I thank you for granting the application and now turn to the issue of costs. PD 24 (1) for summary judgment refers to CPR 44 in relation to costs. I ask the court make an order that the general rule as set out in CPR 44.2 (2) (a) as to costs applies – that the unsuccessful party, the Respondent, is ordered to pay the costs of the Applicant. My Lord, to the extent you consider it relevant, I would also ask the court to take into consideration the conduct of the parties. The conduct of the respective parties clearly supports the Applicant’s position that the general and normal order as to costs should be made. The Defendant has – in the Claimant’s view, unjustifiably, resisted the claim when this could have been resolved without recourse to the court. I therefore ask that an order be made for the Defendant to pay the Claimant’s costs. [If you lose and are given an opportunity to make submissions on costs after the Defendant makes submissions, say the following] My Lord, I am mindful of the general rule as to costs, but the court has discretion to make whatever order as to costs as it sees fit. CPR 44.2 (1) confirms this position. CPR 44.2 (2) (b) also confirms that the court may make a different order as to costs where the relevant factors support such a decision. CPR 44.2 (4) states that in determining what order is appropriate in relation to costs, the court should consider (1) the conduct of the parties and (2) whether it is

reasonable for the parties to take the position they have taken. It was reasonable for the Claimant to issue these proceedings in circumstances where the agreement entered into was clear: the parties had agreed for a stage to be completed in a specified way, but it was the Claimant’s justifiable view that this had not been done – particularly given the collapse of the stage, the significant lost revenue from reimbursed ticket sales as a result, and the damaging reviews of the stage which, in the Claimant’s view, lost significant revenue....