NMB Ltd (t/a Hellier Commercial Finance Ltd) v Merrick-Hide

On an application for summary judgment, the court may determine from the documents whether the defendant has a real defence. Oral evidence and cross-examination are not necessarily required, particularly where case-management orders gave the defendant a proper opportunity to serve a reasoned defence verified by a statement of truth and that opportunity was not used. A judge may enter judgment for the amount clearly established by the claimant’s documents, even where the hearing is also described as one for damages to be assessed. A complaint about an earlier order must ordinarily be pursued by an appeal brought in time. Permission to appeal should be refused where the proposed appeal has no real prospect of success.

NMB Ltd (t/a Hellier Commercial Finance Ltd) v Merrick-Hide concerned a claim by NMB Ltd against Keith Merrick-Hide and Mary Minnie Merrick Hide under a personal indemnity connected with a factoring agreement made with Home Farm Produce Centre Ltd. The defendants disputed liability and alleged breaches of the factoring agreement. At a preliminary hearing in September 1998, the County Court resolved four liability issues in the claimant’s favour, leaving quantum to be determined.

When the matter returned in September 2000, the judge had ordered the defendants to serve evidence in opposition verified by a statement of truth. They served documents, but no verified evidence setting out a reasoned defence. The judge gave summary judgment for £35,000 plus costs. The defendants applied for permission to appeal, complaining about both hearings and, in particular, the absence of the claimant’s witness for cross-examination. The central issues were whether the 2000 hearing could properly be dealt with on the documents and whether there was a real prospect of successfully challenging the order.

1. Application refused; order dismissed. Permission to appeal was refused and the application was dismissed.
2. The complaint concerning the September 1998 liability hearing was out of time. If the defendants were dissatisfied with that order, it should have been challenged by an appeal brought at the time. The Court of Appeal therefore could not properly interfere with it.
3. The September 2000 hearing was, on the documents, both an assessment of damages and an application for summary judgment. In the summary-judgment context, the judge was entitled to determine whether there was a real defence without requiring oral evidence or cross-examination.
4. Case-management orders had given the defendants an opportunity to present a proper, reasoned defence in evidence verified by a statement of truth. They did not provide such evidence. Their general assertions that the claimant’s figures and documents were unreliable did not amount to a detailed analysis showing a real defence.
5. The judge was entitled to conclude that there was no real defence at least to the extent of £35,000, which was clearly established by the claimant’s documents. In the absence of a reasoned dispute, summary judgment was the proper outcome, and there was no real prospect of persuading the Court of Appeal to interfere.

• Court of Appeal (Civil Division): refused permission to appeal and dismissed the application against the Liverpool County Court’s order of 29 September 2000.
• Liverpool County Court: Judge Hegarty resolved the liability issues in the claimant’s favour at a preliminary hearing in September 1998, and later gave summary judgment for £35,000 plus costs on 29 September 2000.