Debt Recovery - Summary Judgment

One of the objectives of Adjudication is to provide a relatively quick and cost effective procedure for resolving disputes (albeit the Adjudicator's decision is temporarily binding).

Should the Adjudicator's Decision not be complied with then the successful party can seek to enforce it by using the summary judgment procedure set out in Part 24 of the Civil Procedure Rules. Summary judgment can be used in any type of litigation proceedings, not just the enforcement of adjudication's decisions.

Summary judgment is aimed at providing judgment at an early stage of the litigation process, thus avoiding the time and expense involved in a full-blown trial. The grounds for an application for summary judgment are set out in CPR  24.2 as follows:

“(24.2)  The court may give summary judgment against a claimant or defendant on the

              whole of a claim or on a particular issue if-

 a) that claimant has no real prospect of succeeding on the claim or issue; or

1. that defendant has no real prospect of successfully defending the claim or issue;  and
   
2.  that defendant has no real prospect of successfully defending the claim or issue; and

b) there is no other compelling reason why the case or issue should be disposed of at a trial.“

Whilst not related to an Adjudicator 's Decision, in the recent case of Nigeria v Santolina Investment Corporation and others [2007] EWHC 437 (Ch) Mr Justice Lewison provided a useful summary of the guiding principles to be applied by the court when deciding whether or not to award summary judgement.

Considering the test to be applied by the court when considering an application for summary judgment, Mr Justice Lewison at paragraph 4 stated the following:

“The courts have now given guidance on the principles to be applied in deciding whether or not to give summary judgment. For present purposes I summarise the relevant ones as follows:

1. The court must consider whether the defendant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;
2. A "realistic" defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]
3. In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman
4. This does not mean that the court must take at face value and without analysis everything that a defendant 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: ED & F Man Liquid Products v Patel at [10]
5. 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: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;
6.  Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;
7. Although there is no longer an absolute bar on obtaining summary judgment when fraud is alleged, the fact that a claim is based on fraud is a relevant factor. The risk of a finding of dishonesty may itself provide a compelling reason for allowing a case to proceed to trial, even where the case looks strong on the papers: Wrexham Association Football Club Ltd v Crucialmove Ltd [2006] EWCA Civ 237 at [57]”.

Summary is a very useful procedure.  For adjudication enforcement, it is the way the TCC require you to proceed.  It is very unusual for summary judgment not to be given when seeking to enforce an adjudicator’s decision.

Equally, it is a very effective tool in litigation disputes, and if granted has the effect of bringing that litigation to a speedy end.

For more information and initial advice please contact us on:

Sarah Shemmings or Richard Silver

Tel.:     0845 345 1244
Email:  office@shemmingsllp.co.uk

Robert Shawyer – Cardiff

Tel.:     02920 474 570
Email:  cardiff@shemmingsllp.co.uk

Don’t forget that you can also make initial contact through our free helpline 08455 1 92 92 1