KB-2023-000257 - [2024] EWHC 647 (KB)

The principles governing applications for summary judgment under CPR 24.3 have been stated on many occasions and are well known. One well-known source is Easyair Ltd v Opal Telecom [2009] EWHC 339 (Ch), [15] (Lewison J). This was approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098, [2010] Lloyd's Rep IR 301, [24]. A more recent summary can be found in Amersi v Leslie [2023] KB 1368 (KB), [142]:

“(1)

The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success… The criterion is not one of probability; it is absence of reality.

(2)

A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable.

(3)

In reaching its conclusion the court must not conduct a ‘mini-trial’. 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, particularly if contradicted by contemporaneous documents…

(4)

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…

(5)

Nevertheless, to satisfy the requirement that further evidence ‘can reasonably be expected’ to be available at trial, there needs to be some reason for expecting that evidence in support of the relevant case will, or at least reasonably might, be available at trial. It is not enough simply to argue that the case should be allowed to go to trial because something may ‘turn up’. A party resisting an application for summary judgment must put forward sufficient evidence to satisfy the court that s/he has a real prospect of succeeding at trial (especially if that evidence is, or can be expected to be, already within his/her possession). If the party wishes to rely on the likelihood that further evidence will be available at that stage, s/he must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court. The court may then be able to see that there is some substance in the point and that the party in question is not simply playing for time in the hope that something will turn up. Fundamentally, the question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success.

(6)

Lord Briggs explained the nature of the dilemma in Lungowe v Vedanta Resources plc [2020] AC 1045 [45]:

‘…On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue…’

(7)

The Court may, after taking into account the possibility of further evidence being available at trial, and without conducting a ‘mini-trial’, still evaluate the evidence before it and, in an appropriate case, conclude that it should ‘draw a line’ and bring an end to the action.”