Spencer v Sillitoe & Anor

On a Part 24 summary-dismissal application, the court must avoid conducting a mini-trial or resolving individual witnesses’ credibility. It should instead take an overview of the material. An overview cannot justify deciding an arguable dispute which depends on whether the claimant’s account is believed. Where that account, if accepted, would support an inference of fabrication or malice, the claimant should have the opportunity to give evidence at a full trial. An adverse assessment made without oral evidence may create an arguable ground of appeal. Limited publication, low damages and costs concerns do not remove that arguability.

Mr Spencer, a solicitor employed by International Computers Ltd, alleged that David Sillitoe had fabricated defamatory allegations that he threatened to tamper with contracts. He commenced proceedings after the allegations were circulated to a limited number of people within ICL.

Mr Justice Morland summarily dismissed the action after taking an overview of the papers and describing the allegation of fabrication as preposterous. Mr Spencer applied to the Court of Appeal for permission to appeal. The central issue was whether the judge had effectively disbelieved him without his giving evidence or having a full trial.

Application allowed. Lord Justice Waller granted permission to appeal. The Court did not determine whether the allegations had been made or fabricated.

1. On a Part 24 application, the judge should not conduct a mini-trial or make findings about the credibility of individual witnesses. The proper approach is to take an overview of the material before the court.
2. That approach does not permit the court to resolve an arguable credibility dispute summarily. Mr Spencer’s case was that he had not made the alleged remarks. If his evidence were accepted, it would support an inference that Mr Sillitoe had fabricated the allegations. The issue was therefore capable of affecting the merits and required an opportunity for Mr Spencer to give evidence.
3. Morland J had, in substance, disbelieved Mr Spencer without hearing his evidence and without a full trial. Whether that was a proper basis for summary dismissal was an arguable point. That was sufficient to justify permission to appeal.
4. The Court recognised that the prospects might be small, that publication was limited and damages might be low, and that an appeal could expose Mr Spencer to substantial costs. Those considerations did not outweigh the existence of an arguable procedural issue.

The formal order was: Application allowed.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 820, Lord Justice Waller allowed the application and granted permission to appeal.
• High Court of Justice, Queen’s Bench Division: Mr Justice Morland summarily dismissed the action under Part 24 after reviewing the papers.