ASSESSING THE EVIDENCE ON A SUMMARY JUDGMENT APPLICATION: CRITICAL EXAMINATION OF THE RAW MATERIAL IS NECESSARY

In Calland -v- Financial Conduct Authority [2015] EWCA Civ 192 the Court of Appeal set out important principles to be considered when the court is considering an application for summary judgment.

THE CASE

The claimant brought an action under the Protection from Harassment Act 1997 following investigation of certain matters by the Financial Conduct Authority. He had been contacted once by letter, once by phone and once by an e-mail. The FSA applied for summary judgment. They failed before a Deputy District Judge but succeeded on appeal to a recorder. The claimant appealed to the Court of Appeal.

KEY POINTS

  • A judge must critically analyse the evidence at an application for summary judgment.
  • The fact that matters are disputed does not absolve a judge from making an assessment of a party’s prospect of success.
  • The court is not bound to accept, without analysis, everything a party states.

THE JUDGMENT IN THE COURT OF APPEAL

  1. Why did the deputy district judge conclude that this was a case fit for trial? She seems to have concluded that a fundamental issue was whether Mr Calland was obliged to provide the regulator with information about his finances. She also noted that there was an e-mail in 2002 from a Mr Armstrong of the regulator to an unnamed recipient at the FSCS saying that Mr Calland had done nothing wrong. At [21] she said:

“Thus, there will need to be resolved here whether there was any complaint or compensation claim from a CIMS client(s), the method of them/it arising (and there were submissions relating to the FOS involvement), whether the conduct by the [regulator] was legally sound, based upon the processes set up by the statutes and statutory instruments identified and whether the conduct triggered the pursuance by the [regulator] of [Mr Calland] in the way described by him so as to amount to harassment.”

  1. What is conspicuous by its absence from the deputy district judge’s judgment is any critical examination of the raw material which is said to amount to harassment. Nor did Mr Tomlinson undertake that examination either in his written or oral submissions. The fact that some factual or legal questions may be disputed does not absolve the judge from her duty to make an assessment of the claimant’s prospects of success. As Lord Hobhouse put in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [158]:

“The important words are “no real prospect of succeeding”. It requires the judge to undertake an exercise of judgment. He must decide whether to exercise the power to decide the case without a trial and give a summary judgment. It is a “discretionary” power, i.e. one where the choice whether to exercise the power lies within the jurisdiction of the judge. Secondly, he must carry out the necessary exercise of assessing the prospects of success of the relevant party. If he concludes that there is “no real prospect”, he may decide the case accordingly. …Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the “bottom line” is what ultimately matters.” (Emphasis added)

  1. In evaluating the prospects of success of a claim or defence the judge is not required to abandon her critical faculties. As Potter LJ put it in E D & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [2003] CP Rep 51 at [10]:

“It is certainly the case that under both rules, 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: see per Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 95 in relation to CPR 24. However, that does not mean that the court has to accept without analysis everything said by a party 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 contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable: see the note at 24.2.3 in Civil Procedure (Autumn 2002) Vol 1 p.467 and Three Rivers DC v Bank of England (No.3) [2001] UKHL/16, [2001] 2 All ER 513 per Lord Hope of Craighead at paragraph [95].”

  1. Let it be assumed that all the factual issues that the deputy district judge identified are resolved in Mr Calland’s favour. How does that turn these three communications, whether viewed individually or cumulatively, into oppressive conduct? The deputy district judge did not explain. Suppose that, as he said, Mr Calland (or his son) had complied with their obligations under Phase 2. That would only mean that Mr Calland had not identified any potential complaints. As Mr Tomlinson recognised, he might have been wrong about that, and claims might subsequently emerge. If subsequent complaints did emerge (as indeed they did) they would still need to be processed. That would have to take place in accordance with the scheme. Who would handle any complaint would depend on whether Mr Calland was able to meet potential claims or not; and that in turn would depend on his financial resources. Suppose that Mr Calland had no obligation to disclose his financial affairs. In that event the compensation fund would not be able to deal with any complaint, and he would be left to deal with any complaint on his own. Disclosure of his financial affairs was in fact put to him both in the letter of 16 March 2005 and in the subsequent telephone call as a question of co-operation rather than obligation. Suppose that the regulator’s conduct was not legally sound. The fact is nevertheless that the regulator had assessed potential investor losses at £168,819; and was simply asking Mr Calland for information. He was asked only twice: one by letter and once in the telephone call. Let it be assumed that, as he said, Mr Calland had done nothing wrong. In that event the claims made by consumers would fail the non-compliance test, as Mr Sidonio said. But it would be Mr Calland who would have to deal with those claims, because his refusal to disclose his finances meant that the FSCS could not do so. How does that turn the communications into harassment? Since the deputy district judge conducted no evaluation of the gravity of the impugned conduct, the Recorder was entitled to carry out his own.
  2. In agreement with the Recorder, in my judgment this conduct comes nowhere near crossing the threshold. It is not even at the front garden gate. Whether the regulator could have established one or other (or both) of the statutory defences is not a question that arises. I echo the words of Ward LJ in Sunderland City Council v Conn at [19]: what on earth is the world coming to if conduct of the kind that occurred in this case can be thought to be harassment, potentially liable to giving rise to criminal proceedings punishable with imprisonment for a term not exceeding six months, and to a claim for damages for anxiety and financial loss? I would dismiss the appeal”

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