Claim No: CR-2024-004856 - [2025] EWHC 2304 (Ch)

Fecha: 10-Sep-2025

LEGAL PRINCIPLES: SUMMARY JUDGMENT

LEGAL PRINCIPLES: SUMMARY JUDGMENT

58.

The legal principles applicable to an application for summary judgment are, I think, in large part agreed among parties, although with differences of emphasis. Both parties agree that the summary of the law provided by Lewison J (as he then was) in Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] essentially encapsulates the approach the court should take - the main principles being:

the court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success that is one that carries some degree of conviction and is more than merely arguable;

ii)

in reaching its conclusion the court must not conduct a “mini-trial” – but this does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court: in some cases it may be clear that there is no real substance in factual assertions made;

iii)

however, in reaching its conclusion, the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial;

iv)

although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment: thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case;

on the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it;

vi)

if material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction.

59.

Mr Ipek’s counsel argue that Koza Altin’s application requires more than a mini-trial: it calls for a summary determination of deeply disputed issues across about 9,000 pages of evidence and no fewer than four expert reports. They argue that a petition to wind up a company on the just and equitable ground is inherently unsuited to summary determination and that the Petition in this case contains material disputes of fact that require full ventilation at trial, and it is only then that a court can be expected to exercise its broad equitable discretion. They point out that three important recent examples all proceeded after multi-day, fact-heavy trials. These were:

Lau v Chu [2020] UKPC 24; [2020] 1 W.L.R. 4656, (“Chu”), which involved a six-day trial;

ii)

Duneau v Klimt Invest SA [2022] EWHC 596 (Ch); (“Klimt”), which involved a seven-day trial; and

iii)

Dosanjh v Balendran[2025] EWHC 507 (Ch) (“Dosanjh”), which involved a four-day trial.

60.

The fact that winding-up petitions on just and equitable grounds have gone to a full hearing does not of itself demonstrate that this type of proceeding cannot be dealt with on a summary basis. I note that in Ringtower, Peter Gibson J considered it possible to strike out such a petition without a petition going to trial.

61.

Koza Altin argues that its case is made out without having to review and make findings about this evidence: essentially its case is simple, it is that it is insupportable for a company to be managed by a director that it cannot remove or replace and who is fundamentally at odds with it as to what should be the future of the company. This point can be demonstrated conclusively from facts that are either agreed or a matter of record and therefore the case is one that is entirely suitable for summary judgment.

62.

Counsel for Mr Ipek also argue that this is a case where relevant legal principles (in particular the relationship between a shareholder’s right to give directions under Article 4 and duties of directors) are not fully developed and in such cases it is inappropriate to give summary judgment, as was found by Longmore LJ in Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Co 100 Ltd [2007] FSR 3 (CA) at [92] (“Doncaster Pharmaceuticals”).

63.

In Harrington & Charles Trading Company Limited v Mehta [2023] EWHC 2420 (Ch) at [120], Miles J (sitting with Master Kaye) referred to another passage in Doncaster Pharmaceuticals where Mummery LJ said.

“Although the test can be stated simply, its application in practice can be difficult. In my experience there can be more difficulties in applying the “no real prospect of success” test on an application for summary judgment … than in trying the case in its entirety …. The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in which to digest and reflect on the materials”

64.

Miles J said about this that:

“… this wise guidance may also apply to legal questions as well as factual ones: in large and difficult cases, the court is more likely to be able to get to the right answer in light of the facts as found and after prolonged immersion in the case in the way that can only be achieved at a trial.”

65.

Whilst I acknowledge the wisdom in these dicta, that is not to say that, where there is a developing area of law, the matter needs always to go to trial. As I have already indicated, Lewison J pointed out in Easyair at [15(viii)] of his judgment, where the case raises a point of law and:

“the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it.”

Further, in JP SPC 4 v Royal Bank of Scotland International Ltd [2023] AC 461 at [30], Lords Hamblen and Burrows JJSC, on considering a submission that where a strikeout or summary judgment application turns on a complex and developing area of the law, it is best left to be determined after a trial on the basis of actual rather than hypothetical facts considered that:

“This must depend on the extent to which the issue of law is fact dependent. Where all the relevant facts can be identified there is no reason why the issue of law cannot be determined and, indeed, it will often be consistent with the overriding objective of the Civil Procedure Rules (CPR Part 1) for that to be done, in the interest, in particular, of saving time and costs.”

66.

Finally, I note that counsel for Koza Altin make the point that the relief that they are considering is discretionary relief. They argue, in my view correctly, that, where the court is being asked exercise discretion or to provide an evaluative decision by way of summary judgment, the court does not ask itself on a summary judgment application whether it is arguable that it would exercise the discretion or make the decision one way or the other – it makes the decision as to whether to do so. In such cases the task of the court is:

first to determine whether the facts and matters relied on as providing the basis for the exercise of the discretion or the making of the decision are made out to the summary judgment standard; and

ii)

having done so, then to exercise the discretion or make the decision, on the basis of the facts and matters so established, in the usual way.

67.

This proposition is supported by Mr Robin Vos, sitting as a Deputy High Court Judge in Abaidildinov v Amin [2020] EWHC 2192 (Ch) at [47]-[49] where he said:

“47 In approaching an application for summary judgment where the relief sought is the making of a declaration, this must in my view be the correct approach. Whether or not the underlying facts or matters relevant to the declarations are made out is the key issue as far as summary judgment is concerned. If the defendant has a real prospect of successfully defending the points put forward by a claimant in support of the declarations, summary judgment should not be granted.
48 However, once it is established that the defendant has no real prospect of mounting a successful defence in respect of those facts or matters, it is unlikely to be in accordance with the overriding objective to require a full trial in order to decide whether the court should exercise its discretion to make the declarations which have been sought. In terms of costs, this would in most cases be entirely disproportionate where it has already been found that there is no realistic dispute in relation to the underlying facts or matters. Although there may still be disputes as to some of the facts which may be relevant to the court’s balancing exercise in deciding whether to exercise its discretion to make or refuse to make the declarations, this should not be a reason for refusing to undertake that task or, in most cases, being unable to undertake that exercise.
49 The reference to the “claim or issue” in CPR r 24.2(a)(ii) must therefore in my view refer to the underlying facts or matters to which the declaration relates and not to the question as to whether, as a matter of discretion, the court should make the declaration, once it is satisfied in relation to those underlying facts or matters.”

68.

This approach was also endorsed by Cockerill J in Banca Nazionale del Lavoro SpA v Provincia di Catanzaro [2023] EWHC 3309 (Comm) at [63], where she said:

“In the case of declaratory relief, the proper approach is set out in Abaidildinov v Amin [2020] EWHC 2192 (Ch). The Court will grant summary judgment where the defendant had no real prospect of successfully defending the relevant “claim or issue”, which refers to the underlying facts or matters which are the subject of the declaration. If the applicant can show that the defendant had no real prospect of showing that those matters are wrong, the Court should exercise its discretion to make the declaration in the normal way, rather than by reference to the summary judgment test.

69.

These cases, in my view, establish the proposition that Koza Altin is advancing where the relief being sought is the discretionary relief of a declaration.

70.

This only goes so far, however, where the relief being sought is the discretionary relief of a winding-up on the just and equitable ground, in that, if the court considers that the facts are established to find a basis justifying such a winding up, but considers that it does not have sufficient evidence of all the facts that should properly weigh on the exercise of its discretion, then it would be open to the court to refuse the exercise of its discretion until it was satisfied that it had all the facts.