| Practice — Appeal — Permission to appeal — Counterclaim for inducement for breach of contract struck out as unsustainable on evidence — Application to Court of Appeal for permission to appeal — Whether “compelling reason” for allowing claim to go to trial — CPR r 24.2(b)
Sawyer v Atari Interactive Inc
CA: Chadwick, Scott Baker and Thomas LJJ: 2 March 2007
The possibility that a binding decision of the Court of Appeal precluding a claim might be reversed on an appeal to the House of Lords which had already been heard and for which judgment was awaited was capable of amounting to a “compelling reason” for allowing the claim to go to trial under CPR r 24.2(b)
The Court of Appeal so stated granting permission to appeal in part and allowing the appeal in part of the defendant, Atari Interactive Inc from the order of Cooke J dated 19 October 2006 striking out the counterclaim of the defendant against the claimant, Chris Sawyer, for inducement of breach of contract and refusing to allow the defendant to amend the defence and counterclaim.
CHADWICK LJ said that the court should recognise the possibility that, when judgments in Douglas v Hello! Ltd (No 3) [2006] QB 125 and Mainstream Properties v Young [2005] IRLR 964 had been delivered by the House of Lords, it would be seen that the view of the law taken by the Court of Appeal was not correct, with the potential for injustice if Atari’s claim in respect of inducement to breach of contract were struck out on the basis of the law as it was now understood. On one view Atari would, itself, need to appeal to the House of Lords in order to reinstate that claim; on any view it would at the least, need to return to this court to have the order set aside. In the meantime the trial might have proceeded on the basis that the claim was no longer capable of being advanced. The more sensible course, would be to allow the claim to proceed on the basis that, by the time the issue came to trial, judgments in Douglas v Hello! Ltd and Mainstream case might well have been handed down by the House of Lords. If those judgments upheld the view of the law taken by the Court of Appeal, then it might be expected that Atari would recognise that its claim in respect of inducement to breach of contract should fail; and the claim would be abandoned. Alternatively, Mr Sawyer could apply, again, for the claim to be struck out. If those judgments indicated that a difference view of the law should be taken, then the trial would proceed on the basis of the law as revealed by the House of Lords. There were compelling reasons, in order to avoid potential injustice, why that course should be taken. On the basis that Atari’s claim in respect of inducement to breach of contract should not to be struck out, the amendments sought in so far as they related to that claim be granted.
SCOTT BAKER and THOMAS LJJ agreed.
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