Watson & Anor v Ian Snipe & Co

Summary judgment should not be used to determine causation issues which form part of a wider factual history that is already destined for trial, particularly where related proceedings will be heard together. Allegations identifying the types of acts, documents or evidence said to have been neglected, and linking those failures to a lost chance of a better outcome, may disclose a viable cause of action.

A request for further information and an application for summary judgment serve different purposes. Further information should ordinarily be sought first, since it may clarify the case and inform whether summary judgment is justified. Combining the applications risks wasteful satellite litigation.

The appellants brought negligence proceedings against their former solicitor concerning the conduct of earlier cartel proceedings. They alleged that failures between 1991 and 1994 to obtain documents, witness evidence and expert evidence prejudiced their chance of recovering damages in those proceedings.

The Commercial Court, presided over by His Honour Judge Michael Dean QC, granted summary judgment on those allegations under CPR Part 24. The appellants appealed. A related negligence action against later solicitors was due to be tried with the present action, raising overlapping issues of causation and loss.

The central issue was whether the pleaded allegations should be summarily determined because the appellants had not provided sufficient detail or evidence concerning the alleged prejudice.

The appeal was allowed with costs.

1. The allegations disclosed a triable case. The pleaded failures identified the areas of activity and types of evidence said to have been neglected. They linked those failures to the lost opportunity to bring or prosecute proceedings successfully. They were therefore not liable to be struck out as disclosing no cause of action.
2. Summary judgment was premature. The assessment of causation and loss required examination of the overall history of the proceedings, including the conduct of both the respondent solicitor and the later solicitors. Since the two negligence actions were to be tried together, isolating allegations forming part of that unfolding history was prima facie inappropriate.
3. Further information and summary judgment were distinct procedures. If the defendant required clarification of the missing evidence, its relevance, or the way in which the cartel proceedings were said to have been prejudiced, the appropriate course was a focused request for further information. That procedure is disciplinary in character and may lead to strike-out, whereas Part 24 concerns whether a claim or issue has no real prospect of success. A request for further information should ordinarily precede an application for summary determination unless summary judgment is already justified.
4. The court also questioned, without deciding, whether the judge was right to assume that legally aided claimants with a nil contribution could not suffer recoverable loss represented by additional costs incurred on their behalf. The parties and trial judge were invited to consider that issue.

The matter was to return promptly to the Commercial Court for case management. Counsel were directed to submit a minute of order.

• Court of Appeal (Civil Division): Allowed the appeal with costs and directed that the matter return to the Commercial Court for case management.
• High Court of Justice, Queen's Bench Division, Commercial Court: On 24 May 2001, His Honour Judge Michael Dean QC granted summary judgment against the appellants on the allegations in paragraph 19(10)(i)–(vii) and related paragraphs of the statement of case.