IN THE COUNTY COURT AT HEREFORD
Claim No:
HE22/2034
BETWEEN
(1) MR TOM COSTELLO
(2) MR GUS ELEN.
(TRADING as COSTELLO & ELEN (a firm)
Claima
nt
and
SIR HARRY RELPH
Defendant
___________________________________________________________________
SKELETON ARGUMENT ON BEHALF OF THE
RESPONDENT/DEFENDANT
Introduction
1. This is the Respondent’s/ Defendant’s (D’) response to the Claimant’s
application for a summary judgement under Civil Procedure Rules Part 24.2
(CPR 24.2) A bundle has been lodged. Estimate reading time: 15 minutes.
Evidence
2. In support of the D’s response, the defendant will refer to his witness
statements (WS/HR) dated 15th of November 2023 along with the following
exhibits namely:
A. Witness Statement from Gus Ellen, the Claimant, dated 22 nd November
2023
B. Exhibit HR1: Planning Permission of the for the conversion to “Song
and Supper Room of Stable and Outbuildings at Canterbury Hall, Hay-
On- Wye” from the West Herefordshire District Council, dated 11 th
March 2022. (Page 26-27 of the Bundle)
C. Exhibit HR2: Price quotation from Costello & Elen, dated 6 th May 2022
(Page 28 of the Bundle)
D. Exhibits HR3: Invoice from Costello & Elen, dated 4th March 2023.
(Page 29 of the Bundle)
E. Exhibits HR4: 2nd invoice from Costello & Elen, dated 31st March 2023
(Page 30 of the Bundle)
F. Exhibits GE1: Correspondence Letter from the Defendant to the
Claimant, dated 10th June 2022. (Page 33 of the Bundle)
Factual Background
3. The Claimant operates as a building contractor under the name Costello &
Elen, while the Defendant is the proprietor of Canterbury Hall in Hay-on-Wye,
Herefordshire. On 6th May, 2022, through a combination of oral and written
terms, the Claimant entered into an agreement with the Defendant to
undertake specific construction tasks. These tasks involved transforming the
stable block at Canterbury Hall into a song and supper room, with the agreed-
upon cost being £39,254.83 plus VAT.
4. The Claimant is seeking payment of the outstanding balance, totalling £
13,085.53, inclusive of interest and cost which the Defendant have not paid.
5. The Defendant claims that when the partially oral and written agreement was
made, the Defendant was acting as an agent of the company BigBoots Ltd
and not as his own personal capacity.
Application made pursuant to CPR 24.2
6. The court is well-acquainted with the criteria outlined in CPR 24.2, but for the
court's convenience, the relevant portions of the rule are restated herein:
(a) […] the Court may give summary judgment if it considers:
i) that the Claimant has no real prospect of succeeding on the
claim or issue;
or
ii) that the Defendant has no real prospect of succeeding on the
claim or issue;
and
(b) there is no other compelling reason why the case or issue should be
disposed of at trial.
7. The Defendant vehemently disagrees with the Claimant’s assertion that the
Defendant has no real prospect of successfully defending the brought claim.
8. The Defendant asserts a real prospect of successfully defending the claim.
The Issue
9. The issue here surrounds in determining whether the Claimant engaged in
business with the Defendant, who was acting in either an individual capacity
or as an agent of Bigboots Ltd, the now liquidated limited company.
“Real Prospect of successfully defending the claim”
10. The defendant asserts that during the formation of the contract, he acted as
an agent representing Bigfoot Ltd, not in his personal capacity as claimed by
the plaintiff. This assertion is supported by the continuous trading under
Bigboots Ltd since 2014, with all attractions at the Hall (Page 13 of the
Bundle) being indicative of the company's management rather than individual
ownership. Furthermore, the defendant's office building, where the initial
meeting with the claimants occurred, prominently displays a sign reading
'Bigfoot Ltd Registered Office,' reinforcing the corporate nature of the
business.
11. The Claimant’s previous visits and collaborations with the Defendant are
indicative of an established relationship. As such the Claimant having been to
the building before and having worked together with the Defendant, would
have noticed the brass plate.
12. The presence of a large brass plate on the door can be serve as a tangible
and visible indicator of the company's registered status. Hence, through this
visual and physical representation of the large bass plate shows a deliberate
effort by the Defendant to convey the company's official status during their
interactions and contributes to the overall understanding and expectation of
dealing with a registered company.
13. Moreover, within his letter addressed to the claimant on June 10, 2022, the
defendant utilized the official letterhead of the company (refer to Exhibit GE1,
letter dated June 10, 2022, on Page 33). Additionally, the Claimant provided a
price quote directed to both the defendant and the company, illustrating the
understanding that they were distinct entities (see Exhibit HR2, dated May
6th , 2022, on Page 28).
14. Furthermore, it is noteworthy that Mr. Elen claimed a spelling error in the price
quote made by his secretary. However, establishing Mr. Elen's unawareness
that he was dealing with a company becomes challenging when the
company's employees were evidently aware of the corporate entity. The
acknowledgment of this mistake raises questions about Mr. Elen's claim of
personal dealings.
15. Moreover, the timing of the first invoice is of significance. The invoice, issued
on March 4, 2023, came after the company, Bigboots Ltd, went into liquidation
post-February 15, 2023. This temporal sequence raises suspicions that Mr.
Elen might have been aware of the company's precarious financial situation,
potentially prompting concern about receiving only a fraction of the amount
owed, as creditors often recover significantly less after liquidation. This aspect
introduces a possible motive for Mr. Elen's actions, indicating that his
awareness of the company's liquidation might have influenced his approach to
the invoicing process.
16. According to the witness statement provided by the claimant, a sum of
£17,524.09 was withdrawn from the company's bank accounts, whereas a
nominal amount of £1226.12 originated from the defendant's personal bank
account for covering the entire project expenses, with the remainder settled in
cash. Although the specific party responsible for the cash payments cannot be
conclusively determined, the stark contrast in the amounts paid by the
company and the defendant raises noteworthy considerations.
17. In the realm of small businesses, it is standard practice for individuals to
employ both personal and company accounts for financial transactions, a
strategy driven by the inherent flexibility required in managing the intertwining
financial aspects of personal and business affairs. The Defendant, as the
proprietor of Canterbury Hall and the figure behind Bigboots Ltd, likely
engaged in such practices during the construction project. This approach is
pragmatic in small business contexts, where the fluidity between personal and
business finances is essential for seamless operations. The use of both
personal and company accounts, as demonstrated by the Defendant, aligns
with industry norms and does not suggest any impropriety, emphasizing the
practicality of such financial strategies in the management of small
enterprises.
18. Therefore, the issues presented indicate a strong case in favour of the
defendant, highlighting a practical likelihood of successfully defending the
claim as opposed to a fanciful one seen in the legal precedent of Swain v
Hillman [2001] 1 All E.R. 91.
Compelling Reason for the Case
19. In the legal matter of Bouygues Ltd v Dahl-Jensen Ltd [2000] B.L.R 522, the
court decided in favour of a company undergoing liquidation, establishing a
compelling basis for rejecting a summary judgment due to existing claims and
crossclaims among the involved parties.
20. Therefore, granting a summary judgment is not warranted due to the
company's ongoing liquidation, presenting a compelling reason. Additionally,
various legal matters need clarification in court, primarily concerning whether
the defendant acted personally as an individual or as an agent of the
company during the contract period.
Conclusion
21. Based on the elucidated reasons, It therefore submitted to the court that the
defendant has a real prospect of defending the claim and there is a
compelling reason for the case to go for trial.
A. COUNSEL
10 th January 2023
J & S CHAMBERS
1078, Chester Road,
Stretford,
Manchester.
M32 OHF
Chronology
Date Events References
6th May 2022 Contract was entered HR2 (Page 28)
10th June 2022 Letter from Defendant to Claimant GE1 (Page 33)
29th June 2022 Second letter from Defendant to Claimant GE1 (Page 34)
July 2022 Schoolchildren suffer food poisoning WS/HR (Page 15)
4th January 2023 Third letter from Defendant to Claimant GE1 (Page 33)
15th February2023 Bigboots Ltd stops trading WS/HR (Page 15)
February 2023 Company goes into liquidation WS/HR (Page 15)
March 2023 Work Finished WS/HR (Page 15)
4th March 2023 Defendant receives first invoice HR3 (Page 29)
31st March 2023 Defendant receives second invoice HR4 (Page 30)
20th April 2023 First reminder for overdue payment GE2 (Page 39)
10th May 2023 Second reminder for overdue payment GE2 (Page 40)
24th May 2023 Final demand for overdue payment GE2 (Page 41)
3rd October 2023 Claim Form and Particular of Claims Issued Page 5 – 7
17th October 2023 Acknowledgment of Service Page 9
1st November 2023 Application for Summary Judgment Page 3 - 4
1st November 2023 First Witness Statement from Mr Gus Elen Page 10 - 11
15th November 2023 Witness statement from Defendant Page 12
22nd November 2023 Second Witness statement from Mr Gus Elen Page 17 - 21
22nd November 2023 Witness statement from Mr Tom Costello Page 22 - 23
If it pleases the court, I am here on behalf of the Respondent and defendant, Mr. Harry Relph,
and my learned friend (XXX) appear for the applicant and claimant, Mr Tom Costello and Mr
Gus Elen in this case.
Judge, I will be addressing the Claimant's application for a summary judgment under Civil
Procedure Rules Part 24.2. Before I proceed, may I confirm that the court has the hearing
bundle and the skeleton argument? Excellent, thank you.
Would the court require the brief facts of the case?
the essence of this dispute revolves around a construction agreement between the Claimant,
operating as Costello & Elen, and the Respondent, the proprietor of Canterbury Hall. The
Claimant seeks payment of an outstanding balance, while the Respondent contends that the
agreement was made as an agent of BigBoots Ltd, not in his personal capacity.
If it pleases the court, I would now like to set of the issues for the court to determine at this
hearing which is set out in paragraph 9 of the skeleton argument.
Firstly, the court may choose to give summary judgment as a matter of your discretion if the
defendant has no real prospect of success and there are no other compelling reasons for the
case to be disposed of at trial. This is pursuant to the rule 24.2 of the civil procedure rules.
If I may refer you to paragraph 8 in the judgement of ED & F Man Liquid Products Ltd v
Patel and another, heard in 2003, the court should consider that a defence has a real prospect
if it can be shown that it is more than merely arguable.
Secondly, the court may choose to give summary judgment if there is no other compelling
reason why the case or issue should be disposed of at trial.
If it pleases the court, I would like to address my first submission which is that the defendant
has a real prospect of successfully defending.
If I may refer the court to paragraph 10 of my skeleton argument, I set out my points of
submissions. Allow me to direct your attention to a crucial aspect of this case. The defendant
contends that, during the formation of the contract, he functioned as an agent representing
Bigfoot Ltd, not in his personal capacity, as asserted by the claimant. This assertion is not a
mere claim; it is substantiated by a history of continuous trading under the banner of
Bigboots Ltd, dating back to 2014.
If I may draw your attention to Page 13 of the bundle, where all attractions at the Hall are
indicative of the company's management rather than individual ownership. Moreover, the
defendant's office building, the very location where the initial meeting with the claimants
transpired, unmistakably boasts a sign reading 'Bigfoot Ltd Registered Office,' reinforcing the
undeniable corporate nature of the business.
Moving on to the Claimant's past visits and collaborations with the Defendant, we find clear
indications of an established relationship. The Claimant, having been to the building before
and having worked closely with the Defendant, would undoubtedly have noticed the
significant brass plate.
This large brass plate on the door serves as a tangible and visible indicator of the company's
registered status. It is not merely a decorative element but a deliberate effort by the Defendant
to convey the official status of Bigfoot Ltd during their interactions. This visual and physical
representation significantly contributes to the overall understanding and expectation of
dealing with a registered company.
In essence, Judge, these aspects of corporate representation and the established relationship
between the parties paint a vivid picture. The defendant's deliberate efforts, from continuous
trading history to physical signage and tangible indicators, strongly support the assertion that
the defendant acted as an agent representing Bigfoot Ltd during the contract formation, rather
than in his personal capacity.
If I may refer the court to paragraph 13 of my skeleton argument, on June 10, 2022, the
defendant penned a letter to the claimant. A critical detail stands out - the defendant utilized
the official letterhead of the company. To verify this, I direct the Judge’s attention to Exhibit
GE1, the letter dated June 10, 2022, placed on Page 33 of the bundle.
Adding another layer to this intricate narrative, the Claimant reciprocated in kind. A price
quote, Exhibit HR2, dated May 6th, 2022, found on Page 28 of the bundle, was directed not
only to the defendant but also to the company. This dual address serves as an illustration, a
tangible proof that both entities were distinctly recognized by the Claimant.
If I may refer the court to paragraph 14 of my skeleton argument, the court should consider
the intriguing episode of Mr. Elen's claim of a spelling error in the price quote made by his
secretary. The challenge arises when we scrutinize the awareness of the company's
employees. They were evidently aware of the corporate entity, bringing into question Mr.
Elen's unawareness during these dealings. The acknowledgment of this mistake raises queries
about the authenticity of Mr. Elen's claim of personal dealings.
Lastly, judge, the timing of the first invoice bears weighty significance. Issued on March 4,
2023, this invoice coincided with the company, Bigboots Ltd, going into liquidation post-
February 15, 2023. This temporal sequence raises suspicions that Mr. Elen might have been
privy to the company's precarious financial situation. The concern arises about the possibility
of him anticipating only a fraction of the owed amount, considering the common practice
where creditors often recover significantly less after liquidation.
This temporal context introduces a plausible motive for Mr. Elen's actions, suggesting that his
awareness of the company's impending liquidation may have influenced his approach to the
invoicing process.
In summation, Judge, these elements collectively present a nuanced perspective, shedding
light on the defendant's actions and the intricacies surrounding the invoicing process.
If I may refer the court to paragraph 16 of my skeleton argument, A crucial financial point
arises. A total of £17,524.09 withdrawn from the company's account, with a nominal
£1226.12 from the defendant's personal account, and the rest settled in cash. This financial
manoeuvre aligns with small business norms, where personal and company accounts
intertwine for seamless operations. The defendant's approach, as the figure behind Bigboots
Ltd, is pragmatic and industry-standard, dispelling any suggestion of impropriety
In light of these considerations, it is submitted that there is a real prospect of successfully
defending the claim, aligning with legal precedents set out in Swain v Hillman [2001] 1 All
E.R. 91.
Moving to my final point of submission, I would like to direct the court to paragraph 19 of
the skeleton argument, where the Defendant submits that is compelling reason for the case. A
precedent of Bouygues Ltd v Dahl-Jensen Ltd [2000], is pertinent to our case. In that matter,
the court ruled favorably for a company undergoing liquidation, establishing a compelling
basis against summary judgment due to existing claims and crossclaims. This precedent is
crucial in our context and granting a summary judgment is unwarranted, given the ongoing
liquidation of the company involved. This would create a compelling reason to reject a
summary judgment.
To summarise my submissions, the defendant submits that he has a good prospect of
successfully defending the claim and there is a compelling reason for the case to proceed to
trial. Therefore, the Defendant seeks for the court to reject a summary judgment.
Unless I can assist the court any further, this concludes my submissions.
