DISPUTES OF FACT IN SUMMARY JUDGMENT APPLICATIONS: THE APPROPRIATE TEST

In Optaglio Limited -v- Tethal [2015] EWCA Civ 1002 the Court of Appeal considered the issue of how far a judge can determine disputed issues of fact in a summary judgment application.

THE CASE

The claimant was appealing an order whereby the defendants had been granted summary judgment. The claimant was alleging negligence on the part of the defendants when they were directors of the claimant company.

THE LEGAL PRINCIPLES IN RELATION TO DISPUTES OF FACT

Lord Justice Floyd set out the relevant principles.

The legal principles
  1. It is well settled that an application for summary judgment should not be allowed to develop into a mini-trial of disputed issues of fact. On the other hand:
” …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 ED&F Man Liquid Products Ltd v Patel and another[2003] EWCA Civ 472 at paragraph 10.
  1. Given the nature of the summary judgment test, the court can only dispose of factual issues in this way when there is no real prospect of the evidence of one side on that issue being accepted. I would add that it is incumbent on a judge giving summary judgment on the basis that an account of a witness is to be disbelieved to explain with reasonable particularity what it is about the contemporary record or other evidence which justified rejecting his evidence.”
THE OBSERVATIONS OF THE JUDGE AT FIRST INSTANCE
  1. In relation to that finding the judge said this at paragraph 26 of his judgment:
“I am conscious that this is a summary judgment application, but it is well established that where there is credible contemporaneous material which contradicts bare assertions or denials, the court can on a summary judgment application take that material into account and give it appropriate weight. There are numerous instances where Mr Zhukov’s evidence is contradicted by other material.”

THE VIEW OF THE COURT OF APPEAL

  1. Mr Jonathan Cohen, who appeared for Optaglio, takes issue with paragraph 26 of the judge’s judgment where the judge refers to using credible contemporaneous material to contradict bare assertions or denials and “give it appropriate weight”. He suggests that this passage indicates that what the judge thought he was engaging in was a process of weighing up and balancing conflicting evidence. That was inappropriate on a summary judgment application. Mr Mold, who appeared for the respondents, submits that the judge was simply reflecting the passage from ED&F Man Liquid Products which I have quoted above.
  2. I think that the reference to giving the contemporary material appropriate weight is somewhat ambiguous. In order to justify disposing of a factual issue at the summary judgment stage the contemporary material must be sufficient to allow the court to say that the contrary assertion has no real prospect of success. This is not really a question of weight, or of weighing competing material. However, if I were otherwise satisfied that the judge had applied the principles correctly, I would not have been inclined to allow the appeal on this ground alone.”

In any event the Court of Appeal allowed the appeal on other grounds.

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