On 1 September 2015, I blogged about the judiciary’s approach to determining a question of pure contractual construction in the context of a summary judgment application. Now, the Court of Appeal has reminded us that making a summary judgment application when the outcome depends in large part on the resolution of factual issues is an aggressive strategy that should not be undertaken lightly.
The guidance in ED & F Man Liquid Products v Patel is that the court can only dispose of factual issues at the summary judgment stage when there is no real prospect of one side’s evidence on that issue being accepted. Further, where there are factual issues which, if decided in the respondent’s favour, would result in judgment for the respondent, it is inappropriate for the court to enter summary judgment, even if there is substantial evidence in support of the applicant’s case (see Munn v North West Water Ltd and Preston Borough Council).
Recently, in the case of Optaglio v Tethal, the Court of Appeal expressed the view that it is not a matter of weighing competing evidence; rather, 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 a contrary assertion has no prospect of success.
In circumstances where it is well-established that it is not appropriate on a summary judgment application to conduct a mini trial in order to resolve conflicts of evidence, especially oral evidence which, in the ordinary course, would be given and tested by cross-examination at a trial (see Allied Fort Insurance Services v Creation Consumer Finance), litigants should reflect hard before applying for summary judgment. This is especially true where the factual background is complex, the making of an application would likely require lengthy witness statements in support and the respondent is likely to resist the application by putting in detailed witness statements of fact. A beautiful summary judgment story can be ruined by a brutal gang of facts.
