Wednesday Law Report: Test to decide entitlement to summary judgment

10 November 1999 Swain v Hillman and another Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Pill and Lord Justice Judge) 21 October 1999

THE QUESTION which a judge should ask himself when considering whether to accede to an application for summary judgment under Part 24 of the Civil Procedure Rules 1998 (CPR 24) was whether there was a realistic, as opposed to fanciful, prospect of success, and not whether he was certain that the claim or defence was bound to fail.

The Court of Appeal dismissed the defendants' appeal against the refusal of their application that proceedings brought against them by the claimant should be dealt with summarily.

The claimant had brought proceedings against the defendants in respect of personal injuries arising out of an accident in 1989. On 17 June 1999 the defendants made an application under CPR 24.2 that the case be disposed of summarily.

CPR 24.2 provided:

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if (a) it considers that (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other reason why the case or issue should be disposed of at a trial.

When CPR 24 came into force, and at the time when the judge was considering the present case, it was accompanied by Practice Direction 24 (PD 24), which stated in paragraph 4.1:

Where a claimant applies for judgment on his claim the court will give that judgment if: (1) the claimant has shown a case which if unanswered would entitle him to that judgment, and (2) the defendant has not shown any reason

why the claim should be dealt with at trial.

Paragraph 4.2 provided that a defendant would be given judgment if :

(1) the claimant has failed to show a case which, if unanswered, would entitle him to judgment, or (2) the defendant has shown that the claim would be bound to be dismissed at trial.

Paragraph 4.3 provided:

Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order, as described below.

The judge, having invited the parties to address him as to whether or not he should make a conditional order, dismissed the application. The defendants appealed.

Graham Walters (John A. Neil, Bristol) for the claimant; Neil Bidder QC (Palser Grossman, Cardiff) for the defendants.

Lord Woolf MR said that PD 24 had, since the time of the judge's decision, been amended because it was perceived that there was a conflict between paragraphs 4.1 and 4.2 and the provisions of CPR 24.

The practice direction indicated that the required approach to an application for proceedings to be dealt with summarily was one of certainty, i.e. that the judge could only exercise his power under CPR 24 if "he thought that a claim would be bound to be dismissed at trial". That did not make clear the effect of the word "real" in CPR 24, which directed the court to the need to see whether there was a realistic as opposed to fanciful prospect of success.

The judge in the present case had, through no fault on his part, been misled by the language of the practice direction in its original form, and had looked at the matter on the basis that he had to be certain that the case was bound to fail before he could appropriately accede to the defendant's application.

Notwithstanding that the judge had adopted the wrong approach, he had, however, come to the right conclusion. On the evidence before him there was an issue which was controversial and capable of being a matter of investigation at the trial.

It was important that judges should, in appropriate cases, use the powers contained in CPR 24, since they gave effect to the overriding objectives in CPR 1 by saving expense, by achieving expedition, by avoiding the court's resources being used up in cases where no purpose would be served, and generally in the interests of justice. If a claimant had a case which was either bound to fail or bound to succeed, it was in his interests to know the position as soon as possible.

Kate O'Hanlon,

Barrister