Inviting judges to use an assessment of a reasonable chance of success as a mini-trial is asking for problems, as recent cases have confirmed, says District Judge Stephen Gerlis

The basis of an application for summary judgment is an assertion that the other party's claim stands no reasonable chance of success and that there is no other compelling reason for the matter to proceed to trial (rule 24.2 of the Civil Procedure Rules 1998).


To give summary judgment against a claimant on the papers without permitting him to advance his case is a serious matter. In Swain v Hillman [2001] 1 All ER 91, and Somerset-Leeke v Kay Trustees Ltd & Anor [2002] All (D) 37 (May) ChD, the courts made it clear that summary judgment was not to be used as some sort of mini-trial of issues which could better be investigated at a trial.


In Swain, Master of the Rolls Lord Woolf stated: 'Useful though the power is under part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at trial.' In Somerset-Leeke, Mr Justice Peter Smith said: 'If a case involves cross-examination... it is dangerous for a court to embark on the relative strength or otherwise of what is said... in witness statements at an interim stage. Where cases turn on the challenge to testimony, that is a classic case for the invocation of 24.2(b). A party should not be shut out from... an opportunity to cross-examine potential witnesses.'


This is not an approach that is always followed. In Merchantbridge & Co Ltd (previously known as Safron Advisers (UK) Ltd) v Safron General Partner 1 Ltd [2005] EWCA Civ 158, [2005] All ER(D) 06 (Mar), the parties had entered into an instalment advisory agreement. When that agreement was terminated by the respondent, discussions as to a possible settlement took place. The dispute revolved around the nature of those discussions.


On an application for summary judgment, Mr Justice Morison made findings of fact as to what had been discussed and agreed, and struck out the claim. On the appeal, the Court of Appeal expressed its surprise that the judge had granted summary judgment on the basis of an alleged oral agreement that was disputed by the parties, calling the decision 'unusual'. Lord Justice Longmore, giving the judgment of the court, expressed the view that the judge had come to a 'too robust hasty decision on the documentation that an oral agreement forgoing any right to sue for wrongful termination had been made' and that the case was accordingly a matter that should go for trial.


CPL Industrial Services Holding Limited v R & L Freeman & Sons [2005] EWCA Civ 539 concerned an application to set aside a default judgment, but the parties and the judge fell into the same trap of trying to get the matter resolved summarily where it was not suitable. The facts were remarkably similar to Merchantbridge. Once again it concerned a commercial contract that was terminated by one of the parties and subsequent discussions at which it was alleged that an agreement had been reached.


On an application to set aside judgment, Judge Cracknell went into the merits of the case and made findings of fact concerning the alleged agreement even though those findings were the subject of dispute between the parties. Lord Justice Thomas, giving the principal judgment, said: 'With respect to the judge's reasoning, I do not think that the issues in the case should have been determined so summarily in the manner in which he did... On the evidence it is clear that there was a dispute as to [what] had been agreed... The view taken by the judge of the merits must have been a decisive consideration. It seems clear to me that if he had misdirected himself on that point, the exercise of his discretion cannot stand.'


Even if a case is weak or improbable, where the only way to measure the prospects of success is to consider and make decisions on disputed evidence, then summary judgment is still not the proper way forward. In Chan U Seek v Alvis Vehicles Ltd [2003] All ER(D) 78 (May), Mr Justice Neuberger, as he then was, in describing the defendant's case as looking 'very weak' went on to say: 'As to the absence of any evidence, I think this is a case where it would be wrong to hold that because the claimant has not come up with any evidence, his claim should be dismissed on the grounds that he is being Micawberistic. It appears to me that the claimant may be easily able to explain why he has not been able to come up with any evidence... I think that those doubts are better left for the trial judge than for me.' (In the event, the parties agreed confidential terms of settlement after eight days of hearing - see re Guardian Newspapers [2005] 3 All ER 155.)


By way of contrast, more recently in Jordan Grand Prix Limited v Tiger Telematics Inc [2005] EWHC 76 (QB) [2005] All ER (D) 284 (Jan), on an appeal by the defendants as to the amount they were required to pay as a result of a conditional order made on an application for summary judgment, Mr Justice Nelson considered that Master Eyre, although considering the defence to be 'vague and utterly unconvincing' and 'shadowy', had properly avoided carrying out a mini-trial, properly considering the written material before him.


Lord Woolf again in Swain: 'It is important that a judge in appropriate cases should make use of the powers contained in part 24. In doing so, he or she gives effect to the overriding objectives contained in part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.' However, an application for summary judgment is not an invitation for the court to make decisions on matters that are best left for trial.


District Judge Stephen Gerlis sits at Barnet County Court and is a contributor to Jordans' Civil Court Service