In Bank of Scotland v Peter Lisney Hoskins [2021] EWHC 3038(Ch), the court has considered an application by the claimant to strike out or summarily dismiss the defence and counterclaim because it was covered by a compromise of earlier proceedings. The claim was for possession of a dwelling-house and surrounding land in Tavistock, Devon, owned by the defendant but mortgaged to the claimant, on the basis of arrears of mortgage repayments exceeding £150,000.
The claim followed earlier proceedings between the same parties concerning repayment of an overdraft facility provided by the claimant to the defendant, which funds were invested in EiRx, a company which the defendant promoted in his role as an entrepreneur in biotechnology. The defence in those proceedings was for breach of contract in relation to further promised lending which led to the administration of EiRx; a claim in estoppel by convention to similar effect; and that the claimant owed a duty of care to both the defendant and EiRx not to misrepresent its policy, breach of which had resulted in loss and damage to them both.
The earlier proceedings were compromised following a successful mediation, by an agreement embodied in a Tomlin order. The compromise contained the release of all claims, past, present and future, that the defendant might have against the claimant arising out of or in any way relating to the proceedings or the subject matter of them, whether or not known at the time to the defendant. It also contained a covenant that the defendant would not make any claim in relation to the subject matter of the counterclaim.
