The claimant sought summary judgment against the defendants for damages for conspiracy to defraud. The defendants had raised false invoices regarding the supply of plant to the claimant and had manipulated accounts to conceal the falsity. They had shared the net sums obtained between them equally. The second defendant entered into settlement negotiations with the claimant so that the summary judgment application proceeded against the first defendant only.

The court found that the first defendant had no real prospect of successfully defending the claim. It held that as a matter of strict entitlement, the claimant could seek judgment against the first defendant for the full gross loss plus interest. However, it then ordered that, given the claim and settlement negotiations with the second defendant, to avoid double recovery and to set an unarguable recovery target, it would only enter a partial summary judgment for half of the amount sought plus interest.

This seems an unusual, and unwelcome, judgment in a case where defendants are jointly liable, especially where the negotiations with the one defendant have not been concluded. The court was seeking to avoid double recovery and to achieve clarity and effectiveness. Will this have been achieved if the negotiations with the second defendant fail or he turns out to be a man of straw?

Costain Ltd v (1) Wilson, (2) Cutler (T/A Cutler Plant & L Cutler Plant)