On 29 March 2012 in Platform Funding Ltd v Miller Parris Solicitors (unreported) his Honour Havelock-Allan QC awarded the claimant lender summary judgment for breach of contract and breach of duty against a firm of solicitors. The application concerned whether the defendant solicitors could show that they had a defence with a realistic prospect of defence where they had not reported to the Claimant on a restriction on occupation of a property.
Mr James had obtained a BTL mortgage from the claimant. When arrears arose he sub let to a tenant whose behaviour caused the freeholder to bring a claim contending that the subletting breached a covenant. A Tribunal had concluded that the borrower was indeed in breach of the covenant. After analysing alternative constructions of the relevant clause the Judge determined that the defence had no realistic prospect of success.
Applications for summary judgment are much in vogue on lenders' claims, particularly for breach of trust. However, applications for summary judgment for breach of contract and negligence on lenders' claims are less common. In this case the previous Tribunal finding against the borrower would have encouraged this application.