Creative Resins International Ltd. v Glasslam Europe Ltd. & Ors

Summary judgment under Part 24 is appropriate only where the claim has no realistic prospect of success and there is no other reason for a trial. The court must avoid conducting a mini-trial, particularly where disputed facts, legal issues or potentially relevant evidence remain unresolved. In a defamation claim against solicitors, questions concerning qualified privilege, malice, the relevance of defamatory allegations and the solicitor’s instructions may require disclosure and witness evidence. The possibility that a client may waive legal professional privilege is also relevant to whether the court is in as good a position as the trial court. A claim should not be summarily dismissed merely because the claimant’s present evidence is incomplete where it is not fanciful and further material may become available.

The claimant brought a libel action concerning letters written by the second defendant solicitors on behalf of the first defendant. The letters alleged that the claimant’s manufacturing process was defective and that it had a history of infringing intellectual property rights. The allegations were published to a third-party manufacturer.

The solicitors applied for summary judgment under CPR Part 24, contending that the claim had no real prospect of success and that qualified privilege protected the publication. The claimant relied on the possible irrelevance of the allegations, malice, and the need for factual investigation. The central issue was whether the claim against the solicitors could fairly be determined before disclosure, witness statements and trial.

1. The application was dismissed. The court declined to enter summary judgment against the second defendant.
2. Under CPR r 24.2, the question was whether the claim had no real prospect of succeeding at trial and whether there was any other reason why the issue should be tried. Swain v Hillman established that the rule excludes fanciful claims but does not permit a mini-trial. Three Rivers DC v Bank of England (No 3) required the inquiry to be conducted consistently with the overriding objective and recognised that complex factual disputes will rarely be suitable for summary determination.
3. The claimant had a real prospect of success against the solicitors, although the first defendant also had a real prospect of success on the information then available. The court could not determine the likely factual findings concerning the German proceedings, the alleged defects, or the instructions given to the solicitors.
4. The correspondence did not place the court in as good a position as the trial court. The first defendant had not waived privilege over communications leading to the letters. It remained possible that privilege would later be waived, producing material relevant to the solicitors’ knowledge, instructions and state of mind.
5. The issues included qualified privilege, the relevance of the allegations to the occasion, and malice. Those issues raised questions of law and fact and were capable of being examined through disclosure and witness statements. Waple v Surrey CC concerned an application to strike out rather than Part 24, but supported caution against determining substantial libel issues prematurely.