Costain Ltd v Wilson –judgment for part of claim

[2007] EWHC 713 (QB)

The claimant alleged that the two defendants had conspired together to defraud them by filing false invoices. D1 was an accountant working within the Costain group and D2 an independent contractor supplying plant to the claimant. The claimant sought summary judgment against them but after negotiations with D2, proceeded at this stage against D1 alone. D1 admitted that funds had been wrongly diverted to him but argued that others were also involved in the fraudulent activities. He refused to name them for fear of reprisals. The full claim was for £663,909.93.

The judge was satisfied that D1 had no real prospect of successfully defending the claim. However he refused to allow the claimants to enter judgment for their full loss even though he acknowledged that they were entitled to do this since the involvement of others, if any, was legally immaterial to D1’s liability as a tortfeasor. Relying on CPR 24.2, which allows the court to enter summary judgment on the whole of the claim or on a particular issue, the judge held that it was appropriate to enter summary judgment for part of the damages sought, £283,722, plus interest, on the basis that this sum represented the amount proved on the balance of probabilities to have been received by D1.

Comment: this judgment is unusual because Holland J chose not to award judgment for the full loss against D1 even though his liability with D2 was joint and not several. Counsel for the claimant had assured him that the Costains would seek to avoid a double recovery, but the judge preferred to "avoid future interplay between recoveries as from both defendants". This required a particularly flexible interpretation of the court’s powers under CPR 24.2, construing giving judgment for part of the sum due as giving judgment on a “particular issue”. If the decision remains unchallenged, defendants in other cases may wish to rely on this approach to avoid judgment for the full claim.