Judgment and Evidence in Contractual Disputes

a) Summary judgment

Part 24 of CPR 1998 empowers the court to deal with application for summary judgment with the aim to enable a claimant or a defendant to obtain judgment at an early stage before proceeding to a full trial. The advantage of making application for summary judgment is reflected in its purposes. This procedure aims to save the time and expense involved in full trial. Thus, according to 24.2, it would be advantageous to FKP is if NEB does not have any real prospect of succeeding its claim, or does not have any compelling reason to be disposed at trial. Such application is allowed when there is a point of law, evidence reasonably expected at the trial or the lack of such evidence, or both. In this case, NEB does not have any evidence to support its claim. In fact, FKP has evidence to show its satisfactory performance of the contract, supported by the letter from NEB dated December 2019, proof of no complaints from NEB, and receipt of full payment. The presence of this evidence may ensure that FKP has a prospect of succeeding the application.

A compelling reason for a trial may allow NEB more time to investigate the matter. For that it must have a good reason for its inability so far to connect with a material witness. It may also argue that the matter in hand is highly complicated and/or technical in nature that it requires the usual procedural steps to understand, and also requires evidence at a full trial subject to the cross examination process. In this case, if NEB provides a credible witness statement that the slump in their sales over the last few months is a result of the alleged factors mentioned in their claim, it may be a compelling reason for a trail. If NEB alleges that the quality of the entire lot of delivered books was not satisfactory and that rendered them unsaleable later after December 2019, it may be a compelling reason indicating a technical analysis of the quality of the book..

Disadvantage of this application may also arise in case where there would be issues to be addressed at trial or there is no prospect of success. It may also arise where the application is dismissed on the ground of lack of conclusive evidence. In such case, the court may pass a conditional order. For example, where a statement of an apparently credible witness is in contrast with that of another apparently credible witness, this will lead to a not conclusive circumstantial evidence. Thus, if a conditional order is passed, such order would require payment of a sum of money into court and take a specified step in relation to the defence. This is subject to the condition that a party’s claim or defence would be dismissed in case on non-compliance.. There is an element of improbabilities irrespective of whether the claim or defence could succeed. This situation is treated by court as “shadowy and unsatisfactory”. In such cases, the court may order payment of amount of the claim or a reasonable amount and allow the defence to continue.

b). Specific grounds for application

FKP must make the application without delay. It must be made before or at the time of filing directions questionnaires. FKP must give NEB at least 14 days’ notice of the date set for the hearing. In this case, FKP has written evidence in the form of the letter dated December 2019 from NEB. As such, FKP must rely on this letter and identify it that it intends to rely on it. It should file and serve this letter at-least seven days before the date of hearing. In the application notice, FKP must state that it is an application for summary judgement.

The application notice should also inform the respondent of his right to file and serve written evidence in reply. FKP in the application must identify point of law or a provision in a document on which its applicant relies. It must state its belief based on evidence it possesses that NEB does not possess any real prospect of succeeding on the claim or issue they have made. FKP ,must also state in the application that it does not know no other reason why the court should wait for trial to dispose of the claim or issue.

Considering the facts of the case, FKP must rely on the particular ground of satisfactory performance of the contract by FKP based on the evidence in the form of letter from NEB dated December 2019, absence of proof of any complaints from NEB, and the receipt of full payment that indicates the satisfactory performance of the deal.

c) Facts for attention of the court

1. FKP delivered the books to NEB in May last year.
2. There has never been any complaint from NEB about the quality of the books until the current court proceedings
3. FKP received the full invoice amount for the books delivered in September last year.
4. NEB provided a signed declaration that the delivery was satisfactorily
5. The letter from NEB dated December 2019 did not mention issues about the quality of the books delivered. Instead, they acknowledged the services as the “best printing services” over the last decade.
6. The letter also identified themselves as “specialists in books” and the only reason they would no longer use the services of FKP was they wished to use services of a local printing firm
7. The website of NEB this year shows the sale of the book for £45.00 each.

d) Cost implication

The order of the court regarding costs, which is made at the conclusion of the hearing is subject to the type of claim and the outcome of the application. If the claimant is successful in obtaining summary judgment for a specified sum, the court may award fixed costs). The fixed costs are £175 if the judgment exceeds the amount of £25 but does not exceed £5,000, and £210 if the judgment exceeds the amount of £5,000. Normally, it is likely that the court will award fixed costs. Thus, applying this rule, in the FKP fails to obtain the summary judgment, which is for a specified sum, the court may award fixed costs of £210 as the judgment would exceed £5,000 (the contract price n the current case is £100,000). This is also subject to summary assessment. If the summary judgment application fails, the case will still proceed to trial in the normal procedural way. Even if FKP is ultimately successful at trial, it would have lost both its costs of the summary judgment and any costs that FKP was ordered to pay to NEB. In such case, FKP can rely on the provisions in CPR 1998, Part 25.12. FKP can apply for security for costs asking the court to exercise its discretion to order NEB to provide security for the costs that FKP is likely to be awarded if FKP finally defeats the claim. It is for the court to consider whether the claim has a reasonably good prospect of success. The less likely the defendant is to win at trial, the less justified he is in seeking security.

In case if FKP secures summary judgment where the claim of NEB is struck out, the court will usually award FKP its costs of the claim, including pre-action costs. This is subject to an otherwise agreement between the parties. It will further be subject to a summary assessment. In such case, the court will order NEB ordered to pay FKP’s, usually within 14 days. .

There are certain rules regarding summary assessment. The court will make a summary assessment of costs. This costs will be payable within 14 days, unless the court orders otherwise. Before the summary assessment, both of the parties must file and serve a statement of costs not less than 24 hours prior to the hearing for the court. Such statement will provide a breakdown of the costs. This will enable the court to assess the costs at the end of the application. In case of failure to comply with the requirement without having any reasonable excuse, the court will take into account this factor while deciding what costs order to make. The procedure under Part 45 of CPR will define the occasions on which fixed costs may be granted. Discover additional insights on Professional Misconduct by navigating to our other resources hub.

Cases

Bates v Microstar Ltd [2000] LTL Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC [2019] EWCA Civ 119. Hussain v Woods and Another [2001] Lloyd’s Rep PN 134. Swain v Hillman [2001] 1 All ER 91. Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3 bis) [2001] 2 All ER 513, HL).

Books

Browne K and Margaret J. Catlow, Civil Litigation (College of Law Publishing 2012)