Summary

Applications for summary judgment and to strike out a claim for breach of an agreement on the basis that a valuer had not accurately valued a bonus payment were dismissed where there was a possibility that a higher valuation might have been made had the valuer had complete and accurate information from the defendant.

Facts

The defendant applied to strike out the claimant's claim seeking relief for breach of an agreement or, in the alternative, summary judgment.

The defendant was a company providing advisory services in the financial sector. The claimant had founded a healthcare insurance intermediary business. The defendant acquired that insurance business and employed the claimant to continue to run it. Under a bonus agreement between the claimant and the defendant, the claimant became entitled to a bonus payment upon the service of a written notice. The amount due depended on the turnover and the fair value of the defendant's business. The parties appointed a valuer to calculate the "fair value", the fair value being the fair market value. The valuer produced a non-speaking valuation, which stated the fair value of the defendant's business, without explaining the underlying valuation and paid the claimant 38% of the fair value. The claimant objected, as she believed it to be an undervaluation and that it had been produced without the information that the defendant should have provided to ensure an accurate valuation. The claimant initiated proceedings as a result. The defendant made the instant applications.

The defendant submitted that the claimant was seeking to circumvent the binding nature of the valuer's valuation and her claim was incapable of proof.

Held

The fact that the claimant thought the valuation was a nullity was not a matter that had to be pleaded for the purposes of the claim. Although inelegantly expressed, the claimant's pleaded claim was one for damages. There was a real possibility that the claimant could adduce factual and expert evidence to demonstrate that the valuer would have valued the business at a higher amount had the defendant provided it with accurate and complete information. The claim based on a breach of contract for failure to provide complete and accurate information to the valuer did not necessarily mean that the claimant was seeking to circumvent the valuer's valuation; the claim lay responsibility on the defendant for the allegedly inaccurate valuation. Although the claimant had made submissions to the valuer as to the treatment of the business as renewal business, it was not an issue raised in her claim. The claim focussed on the information that the defendant had allegedly failed to provide. The claim that the valuation was a nullity was a question of law that required full argument. If it was a nullity, it might have answered the defendant's objections to the claim in debt and that it was not to produce an alternative valuation as a comparator to the valuer's valuation. The defendant's argument that the claim was incapable of proof was presented as logical necessity; it was not based on any expert evidence. The court would not be able to determine that without considerable factual or expert evidence. The claimant's case had a real prospect of success at trial (see paras 43, 45, 51-57 of judgment).

Applications refused