ASE Metals NV v Exclusive Holiday of Elegance Ltd
| Jurisdiction | Jamaica |
| Judge | Harris JA,Phillips JA,Brooks JA |
| Judgment Date | 27 September 2013 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 142/2012 |
The Hon Mrs Justice Harris JA
The Hon Miss Justice Phillips JA
The Hon Mr Justice Brooks JA
SUPREME COURT CIVIL APPEAL NO 142/2012
JAMAICA
IN THE COURT OF APPEAL
DEBT - Goods - Claim for price of goods sold and delivered but not paid for - Whether goods of un-merchantable quality - Breach of warranty - Application for summary judgment - Whether the defendant had no reasonable prospect of success
I have read, in draft, the judgment of Brooks JA. I agree with his reasoning and conclusion and have nothing further to add.
I too have read the draft judgment of Brooks JA and agree with his reasoning and conclusion. I have nothing further to add.
In or about April 2008, ASE Metals NV (ASE), a corporate entity with its registered offices in Belgium, supplied a quantity of reinforcing steel bars to Exclusive Holiday of Elegance Limited (Exclusive Holiday), a company incorporated and operating in Jamaica. Exclusive Holiday has not paid for the steel, and on 11 February 2010 ASE filed a claim in the Supreme Court to recover the sum of US$885,747.77, together with interest thereon. That sum is said to represent the amount that the parties had agreed that Exclusive Holiday would have paid to settle the amount outstanding on the invoice for the steel.
Exclusive Holiday filed a defence to the claim. Among other things, it acknowledged that it had received some steel but alleged that the steel received was not the grade that it had ordered. It also averred that the steel had not been bundled in the manner that it had specified in its order. Significantly, it further asserted that it was not a party to the agreement that ASE relies upon, in that its name did not appear on the document and that the person who purported to sign on its behalf, did not have any authority to bind it.
On 25 June 2010, ASE filed an application to strike out Exclusive Holiday's defence and, in the alternative, it sought summary judgment against Exclusive Holiday. In its application, ASE asserted that the parties had, since the supply of the steel, agreed that Exclusive Holiday had ‘acknowledged the indebtedness for the amount claimed and had made a commitment in writing to pay that sum’. As a result, it contended, Exclusive Holiday's defence had no reasonable prospect of success.
The application came on for hearing before Sinclair-Haynes J. On 19 April 2012, the learned judge dismissed the application, granted costs to Exclusive Holiday and refused permission to appeal.
ASE has appealed against those orders by way of a procedural appeal. It has challenged the learned judge's finding that Exclusive Holiday had successfully ‘raised several issues which need to be determined at trial’.
Exclusive Holiday filed a counter-notice of appeal. It has asserted that not only is the learned judge's decision correct but that it may be supported by other grounds. Exclusive Holiday has contended that certain procedural defects in the affidavit evidence filed by ASE rendered that evidence inadmissible.
The main issues to be decided in this appeal are, firstly, whether the learned judge applied the correct tests in refusing ASE's application. The second main issue is whether the evidence adduced by ASE was so compelling that Exclusive Holiday had no real prospect of successfully defending the claim. Although this court does not have the benefit of the learned judge's reasoning leading to her decision (partly because the appeal is a procedural appeal and no request was made for the judge's reasons), it is, nonetheless, entitled to carry out its own review of the material that was before her, and arrive at its own conclusion thereon.
In approaching the appeal, the applicable law will first be outlined. That outline will be followed by a summary of the relevant pleadings and evidence, and finally, the applicable law will be applied to those pleadings and that evidence.
(a) The principles concerning applications for summary judgment and for striking out statements of case.
The main principle governing the grant of an order for summary judgment is that a court may grant summary judgment to a claimant if it considers that ‘the defendant has no real prospect of successfully defending the claim or the issue’. Rule 15.2 of the Civil Procedure Rules 2002 (the CPR) states:
‘The court may give summary judgment on the claim or on a particular issue if it considers that —
(a) the claimant has no real prospect of succeeding on the claim or the issue; or
(b) the defendant has no real prospect of successfully defending the claim or the issue.
(Rule 26.3 gives the court power to strike out the whole or part of [sic] statement of case if it discloses no reasonable ground for bringing or defending the claim.)’
A very similar provision governs the court's approach to applications to strike out statements of case in circumstances such as those in the instant case. Rule 26.3, mentioned in the note to rule 15.2, is the relevant rule. It states, in part:
‘In addition to any other powers under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court-
…
(c) that the statement of case or the part to be struck out discloses no reasonable grounds for bringing or defending a claim;…’
The similarity of the effect of these rules allows a conflation of the principles for the purposes of this judgment. Reference hereafter will only be to the principles guiding an application for summary judgment.
The overall burden of proving that it is entitled to summary judgment lies on the applicant for that grant (in this case ASE). The applicant must assert that he believes that that the respondent's case has no real prospect of success. InED & F Man Liquid Products Ltd v Patel and Another [2003] EWCA Civ 472 [2003] EWCA Civ 472, Potter LJ, in addressing the relevant procedural rule, said at paragraph 9 of his judgment:
‘…the overall burden of proof rests upon the claimant to establish that there are grounds for his belief that the respondent has no real prospect of success…’
Once an applicant/claimant asserts that belief, on credible grounds, a defendant seeking to resist an application for summary judgment is required to show that he has a case ‘which is better than merely arguable’ (see paragraph 8 of ED & F Man ). The defendant must show that he has ‘a “realistic” as opposed to a “fanciful” prospect of success’.
The quote in the last sentence of the preceding paragraph is taken from page 92 ofSwain v Hillman [2001] 1 All ER 91 [2001] 1 All ER 91, in which the standard for considering applications for summary judgment was examined. On examining that decision, it may be extracted from the judgment of Lord Woolf MR that it would be wrong for a court to require a claimant to prove that a defendant had no prospect of success, as that would be setting the standard too high. Swain v Hillman was a case involving an application by a defendant to strike out a claim, but it provides guidance for cases such as the present. Lord Woolf MR stated at page 93:
‘[It was thought that a connected practice direction stipulated that the] judge could only exercise his power under Pt 24 [the equivalent to part 15 of the CPR] if he was certain or, to read the actual language of the practice direction, “he thought that a claim would be bound to be dismissed at trial”. If that was thought to be the effect of the practice direction, that would be putting the matter incorrectly because that did not give effect to the word “real” to which I have already referred.’ (Emphasis supplied)
The learned Master of the Rolls went on to say, at pages 93–94:
‘I detect from the judge's judgment that he was looking at the matter on the basis that he had to be certain that the case could not succeed and was bound to fail before he could appropriately accede to the defendant's application.
Although I consider that the judge therefore adopted the wrong approach for that reason , I am quite satisfied that he came to the right decision.’ (Emphasis supplied)
In carrying out its task, a court considering an application for summary judgment, so far as factual issues are concerned, should not seek to conduct a “mini trial”. Lord Woolf MR, stated at page 95 ofSwain v Hillman:
‘…the proper disposal of an issue under Pt 24 does not involve the judge conducting a mini-trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily.’
The court does not, however, have to accept everything which a party places before it. The court in ED & F Man established this at paragraph 10 of that judgment:
‘However, that does not mean that the court has to accept without analysis everything said by a party 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 contemporary documents . If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable…’ (Emphasis supplied)
The rationale for the power given in part 15 is conveniently set out by Lord Woolf MR at page 94 ofSwain v Hillman where he stated, in part:
‘It is important that a judge in appropriate cases should make use of the powers contained in Pt 24. In doing so he or she gives effect to the overriding objectives contained in Pt 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I...
To continue reading
Request your trial
-
Jennes Anderson v General Legal Council
... ... of success” (see paragraphs [14] and [15] of ASE Metals NV v Exclusive Holiday of Elegance Limited [2013] JMCA Civ 37 ... ...