Collins v Union Bank Of Switzerland & Ors

Summary judgment may determine a disputed issue of reliance where contemporaneous documents make the claimant’s alleged reliance untenable and establish that there is no real prospect of success at trial. Such a determination does not necessarily amount to a prohibited mini-trial.

Permission to adduce fresh evidence on appeal requires special grounds. Evidence which could have been obtained with reasonable diligence, and which would probably not have materially influenced the earlier decision, should not be admitted. After an unsuccessful appeal to a High Court judge, permission to appeal will ordinarily be granted only for an important point of principle or practice, or another compelling reason.

The claimants sought permission to appeal against an order of Thomas J dated 15 November 1999. Thomas J had dismissed their appeal from summary judgment granted by Senior Master Turner in favour of Union Bank of Switzerland and Barclays Bank.

The claims arose from allegedly misleading bank references concerning the financial standing and funds of Royal Trust of Greece. The claimants alleged that they relied on the references when pursuing a proposed sale and rejecting another offer. They also sought to revive allegations that a UBS employee had acted fraudulently.

The Court of Appeal was asked to consider reliance, the proposed fresh evidence supporting fraud, the appropriateness of summary judgment under CPR Part 24, and whether permission should be granted following the earlier unsuccessful appeal.

1. Applications dismissed. The claimants had no real or realistic prospect of establishing at trial that they relied on the UBS reference. The contemporaneous documents showed clearly that they understood Royal Trust of Greece to be an intermediary rather than the source of the proposed loan. The alleged negligence or dishonesty of the UBS employee was therefore academic to the claim’s prospects. In any event, the judge had correctly held that, if the reference was negligent, UBS was protected by a disclaimer of which the claimants were aware.
2. The proposed fresh evidence was not admissible. The statement of David Tristram could have been obtained with reasonable diligence before the hearings before the Senior Master or Thomas J. Tristram’s previous involvement in alleged fraudulent schemes also made his newly asserted evidence require considerable caution. It was inherently unlikely that the evidence would have had an important influence on the Part 24 application.
3. The summary procedure was appropriate. The principal issue of reliance was determined safely and conclusively from contemporaneous documents. The hearing was not a mini-trial within the concern identified in Swain v Hillman, 'The Times' 1 November 1999; rather, summary judgment avoided the expense and delay of a trial.
4. The further application for permission to appeal did not satisfy the applicable practice direction. The case raised neither an important point of principle or practice nor another reason warranting consideration by the Court of Appeal.

• Court of Appeal (Civil Division): dismissed the applications and upheld the refusal of permission following the earlier High Court appeal.
• High Court, Queen’s Bench Division: Thomas J dismissed the claimants’ appeal from summary judgment on 15 November 1999.
• Senior Master Turner: granted summary judgment to UBS and Barclays and refused permission to revive the fraud allegations.