Swain v Hillman & Anor

Summary judgment under rule 24.2 of the Civil Procedure Rules is appropriate where a party has no realistic, rather than fanciful, prospect of success and there is no other reason for a trial. The rule does not require certainty that the claim or defence will fail.

The power furthers the overriding objective, but it must not become a substitute for trial where material factual issues require investigation. An improbable case may still have a real prospect of success. Where success is possible but improbable, a conditional order may be available.

Swain v Hillman & Anor concerned a personal injury claim against two builders. The claimant alleged that a plank left upright at a building site fell on him. The defendants disputed their responsibility for the site and applied for summary judgment at a case management conference.

His Honour Judge Graham Jones, sitting as an additional High Court judge, dismissed the application. The defendants appealed. The central issues were the meaning of “no real prospect of succeeding” under rule 24.2 of the Civil Procedure Rules and whether the disputed circumstances of the accident required investigation at trial.

1. Appeal dismissed unanimously. Lord Woolf MR delivered the leading judgment. Judge LJ expressly agreed with his judgment and reasons. Pill LJ agreed that the claimant had a real, rather than fanciful, prospect of success despite expressing misgivings about the evidence.

2. Rule 24.2 of the Civil Procedure Rules permits summary judgment where the claimant or defendant has no real prospect of success and there is no other reason for a trial. The word “real” distinguishes a realistic prospect from a fanciful one. The language requires no further amplification and does not require certainty that the claim or defence is bound to fail.

3. Part 24 is wider than rule 3.4. An application under rule 3.4 is generally confined to whether a statement of case discloses reasonable grounds for bringing or defending the claim. Part 24 enables the court to assess whether the claim or defence has a real prospect of success.

4. The former paragraphs 4.1 and 4.2 of the Part 24 practice direction were capable of suggesting an incorrect certainty or “bound to fail” standard and had since been deleted. Lord Woolf MR concluded that the judge had apparently been misled by their former language. The judge therefore adopted the wrong approach but reached the correct result. Under the surviving paragraph 4.3, a conditional order may be made where success is possible but improbable.

5. Courts should use Part 24 in appropriate cases. It saves expense, promotes expedition, preserves court resources and gives effect to the overriding objective in Part 1. Its proper role does not include conducting a mini-trial or dispensing with a trial where factual issues require investigation.

6. The evidence raised triable questions concerning control of the site, the reason the plank remained there, how it fell and whether the defendants or someone for whom they were responsible had been negligent. Those matters required determination at trial. The formal order was that the appeal be dismissed, with costs for detailed assessment.

• Court of Appeal (Civil Division): In Swain v Hillman & Anor [1999] EWCA Civ 3053, the court unanimously dismissed the defendants’ appeal and upheld the refusal of summary judgment.

• High Court, Queen’s Bench Division: On 17 June 1999, His Honour Judge Graham Jones, sitting as an additional High Court judge at Cardiff, dismissed the defendants’ application for summary disposal at a case management conference.