Do not be complacent in resisting a summary judgment application

In resisting a summary judgment application, the respondent must put forward sufficient evidence to satisfy the court that it has a real prospect of succeeding at trial: Korea National Insurance Corporation v Allianz Global Corporate & Specialty AG [2007] EWCA Civ 1066.

Background

The claimant had obtained judgment against the defendant reinsurer in Korea on a claim for indemnity under a reinsurance contract. The defendant declined to honour the judgment and the claimant brought English proceedings to enforce it. The defendant's allegations included that the Korean judgment had been obtained by fraud because the claimant had failed to inform the court that the claim had been settled under an oral agreement. The English court gave summary judgment for the claimant on that issue. The defendant appealed.

Decision

The Court of Appeal (Buxton, Jacob and Moore-Bick LJJ) dismissed the appeal. The absence of a written note or record of a compromise was significant. It was difficult to imagine that the parties would have been willing to enter into a binding agreement to settle the claim without a record of some kind. Further, correspondence exchanged between the parties after the date of the alleged agreement not only made no reference to the existence of a binding agreement but was positively inconsistent with any such agreement. Finally, even if in law there had been a binding agreement, in light of the correspondence there was no real prospect of the defendant showing at trial that the claimant knew there had been a settlement, and thus had pursued a fraudulent case before the Korean court.

The court stated: "It is incumbent on a party responding to an application for summary judgment to put forward sufficient evidence to satisfy the court that it has a real prospect of succeeding at trial. If it wishes to rely on the likelihood that further evidence will be available at that stage, it must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court."

Comment

This case puts parties seeking to resist an application for summary judgment on clear notice of what is required. The defendant in this case filed no evidence in opposition to the application, relying instead on the verification of the defence and counterclaim by the solicitor who signed the statement of truth on its behalf. The Court of Appeal rejected the defendant's argument that the judge should have made allowance in its favour for the likelihood that additional evidence relating to various aspects of the defence would be available at trial. It was not enough just to say that further evidence would or might be available, especially when that evidence could be expected to be already in the possession of the defendant.

The case also highlights that the court will not necessarily view a statement of case verified by a statement of truth as equivalent to direct witness evidence, particularly where it is signed on behalf of a party rather than the individual's own behalf. Here the court commented that it was "inherently unsatisfactory" for the defendant to rely on the statement of truth made by their solicitor on their behalf as containing his evidence when he could have provided a witness statement in his own right.