Fatima Garcia Cox v Gloria Cox and James Cox (32 of 2021) [2022] TCASC 19 (29 July 2022)

Flynote

Civil Procedure

Case summary

Gloria’s summons to strike out the Fatima’s writ of summons, was dismissed.  Fatima’s summons for summary judgment, was dismissed. Gloria was granted permission to file a defence within 14 days of the order. No order as to costs were made on either application. The Court found that although Gloria’s application relied on all three grounds in the rule, her primary ground was that the writ and statement of claim discloses no reasonable cause of action against her. In order to succeed on an application to strike out an action on this ground, a defendant must satisfy the Court that even if the plaintiff proves all the pleaded allegations, the action would still fail. [14] to [15]. Royal Bank of Scotland International Ltd v JP SPC 4 [2022] UKPC 18 considered. Gloria’s counsel pointed out that there is no allegation that Gloria made an express representation to Fatima. However, an express representation or assurance is not necessary to found a claim of proprietary estoppel; depending on the circumstances silence may be sufficient. [17] Mohammed v Gomez and others [2019] UKPC 46 considered. The Court made no finding as to the credibility of Fatima’s allegations, but found if she proves them at the trial of this action, it cannot be said that her pleaded claim is bound to fail. It would be open to the trial judge to find that a claim based on proprietary estoppel has been established. It followed that Gloria had not shown that Fatima’s pleadings do not disclose a reasonable cause of action against her, and the summons to strike out the action on that ground failed. [18] The Court also found that the claim was not scandalous, frivolous or vexatious and there had been no abuse of process. [19] to [20] As regards Fatima’s application for summary judgment, the court said on a summary judgment application, the parties and the court are not restricted to a consideration of the pleadings. The court may (and indeed, should) consider all the evidence before it. [23] To have been successful Fatima would have had to satisfy the court that Gloria has no defence to the proprietary estoppel claim which has a realistic prospect of success. The nature of Gloria’s potential defence, is primarily that she made no representations to Fatima and that any representations were made by James, who was not the legal owner of the Home. Gloria effectively denies that in the circumstances, her silence or conduct could constitute the representation necessary to establish a claim based on proprietary estoppel. [24] to [25] The Court found there are conflicts of fact on the affidavit evidence.  If pleaded and proved, Gloria’s defence has a realistic prospect of success.  The outcome of the trial will depend to a large extent, on the trial judge’s findings of fact after the witnesses have given oral evidence and that evidence has been tested under cross examination. Fatima will have to establish the three elements of proprietary estoppel: representation, reliance and detriment. The basis of the ‘representation’ claim is essentially that Gloria stood by in silence while Fatima developed the Home. Whether in all the circumstances this was a sufficiently clear representation, and one on which Fatima relied, are disputed issues that will require evidence at a trial. In the circumstances the application for summary judgment also failed [26] to [28].

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