CA-2024-001254 - [2025] EWCA Civ 961

There was no dispute between the parties as to the legal principles applicable to an application for summary judgment under CPR Part 24. Ms Addy referred us to the oft-cited summary by Lewison J (as he then was) in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] and in particular to the points he made at sub-paragraphs v), vi) and vii), all of which caution the Court against giving summary judgment simply on the evidence before it without also considering whether the evidence that might reasonably be expected at trial might give a fuller or different picture. She also referred us to Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661, [2006] ETMR 65 at [4]-[18] per Mummery LJ (summary judgment is designed for straightforward cases; the Court should exercise caution and avoid a mini-trial on the facts; and should hesitate about making a final decision without a trial where reasonable grounds exist for believing that a fuller investigation into the facts would add to or alter the evidence available to a trial judge); and to Okpabi v Royal Dutch Shell plc [2021] UKSC 3, [2021] 1 WLR 1294. The latter was not a summary judgment application but a decision on jurisdiction, but Lord Hamblen JSC repeatedly warned against the Court conducting a mini-trial, invoking the same principles as are applicable on an application for summary judgment: see at [21], [103], [110], [120] and [126].

These principles are very familiar, and as I said were not disputed, nor is it suggested that the Judge was unaware of them, only that he did not in fact apply them correctly. I add a few words on the requirement to avoid a mini-trial. It is sometimes deployed as if the Court errs if it embarks on any detailed examination of the evidence before it. That I think overstates matters. The exhortation to avoid a mini-trial (which dates back at least to the judgment of Lord Woolf MR in Swain v Hillman, reported at[2001] 1 All ER 91 but in fact given in October 1999 not long after the introduction of the CPR) is directed at the situation where there is a conflict of evidence on some factual issue: see the way in which it is put by Potter LJ in ED & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at [10] (“where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial”). In such a case the authorities make it clear that the Court should not seek to resolve, without the usual safeguards of disclosure and cross-examination, which of two versions of the facts is more likely to be true. But this does not mean that the Court is prevented from examining and assessing the evidence before it. On this I agree with the statement by Cockerill J in King v Stiefel [2021] EWHC 1045 (Comm) at [21] that the authorities “make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence”. Indeed the Court is not only entitled but obliged to do this, not with a view to resolving disputed versions of events, but with a view to assessing whether there is any real substance in the suggested defence (or claim, as the case may be), or whether on the other hand it is fanciful. For this purpose it is well established that the Court is not obliged to take all factual assertions at face value, as it may be clear, particularly from contemporaneous documents, that there is no real substance in them: Easyair v Opal at [15 iv)], ED & F Man v Patel at [10]. The question is always whether it has been shown by the applicant that there is no real prospect of success in the defence (or claim), and for this purpose the Court necessarily needs to examine the evidence to see if there is, or may be, any substance in it.