North East Lincolnshire Borough Council v Millenium Park (Grimsby) Ltd [2002] EWCA Civ 1719 (23 October 2002)

North East Lincolnshire Borough Council v Millenium Park (Grimsby) Ltd [2002] EWCA Civ 1719 (23 October 2002)

The judge erred by resolving the issue of impossibility at the summary judgment stage; there was real, non-fanciful evidence of impossibility of performance due to lack of funding, and the case should proceed to trial.

Citation
[2002] EWCA Civ 1719
Parties
Claimant: North East Lincolnshire Borough Council; Defendant/appellant: Millenium Park (Grimsby) Limited
Jurisdiction
England and Wales
Judgment Date
23 October 2002
Procedural Posture
Civil Appeal / Appeal From Summary Judgment (part 24)
Outcome
appeal allowed
Legal Topics
Specific Performance, Remedies for Breach of Contract, Summary Judgment, Impossibility of Performance
Contract Law Equity Civil Procedure Specific Performance Remedies for Breach of Contract Summary Judgment Impossibility of Performance

Case Brief

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Parties

North East Lincolnshire Borough Council

Claimant

Millenium Park (Grimsby) Limited

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Summary Judgment (part 24)

Legal Issues

  1. 1 Whether summary judgment for specific performance of construction works was appropriate
  2. 2 Whether impossibility of performance due to lack of funding is a real prospect of defence
  3. 3 Whether specific performance should be ordered where claimant owns the land and damages may be adequate

Ratio Decidendi

The judge erred by resolving the issue of impossibility at the summary judgment stage; there was real, non-fanciful evidence of impossibility of performance due to lack of funding, and the case should proceed to trial.

Court Disposition

appeal allowed

Orders

  • Appeal allowed with costs of the appeal.
  • Respondent to keep 50% of costs up to 12th February.