Cotton (t/a Allmat Enterprises) v Rickard Metals Inc

Summary judgment is inappropriate where the evidence, although apparently strong, requires disclosure, investigation or cross-examination to resolve material inconsistencies. Under Civil Procedure Rules 1998, Part 24, the court must consider both whether the resisting party has a realistic prospect of success and whether there is another compelling reason for trial. The court must avoid conducting a mini-trial or choosing between competing accounts on incomplete evidence. Fresh evidence may be admitted on appeal where it supports the appellant’s case and gives it some prospect of success. An incomplete evidential picture concerning testing, documents and the identity of the material may therefore justify setting aside summary judgment.

Rickard Metals Inc claimed that titanium supplied by Daniel Cotton did not correspond with the contractual description, contrary to section 13 of the Sale of Goods Act 1979. Master Rose granted summary judgment on that issue and ordered an inquiry as to damages. The claim also included fraudulent misrepresentation and a claim concerning transfers of property under section 423 of the Insolvency Act 1986, but those matters were outside the summary judgment application.

Cotton appealed. Cox J had granted permission, including reliance on new evidence concerning testing and certificates from the Chinese manufacturer. The central issues were whether the new evidence should be admitted and whether the evidence of non-compliance was sufficiently clear for summary judgment.

1. Appeal allowed. The order granting summary judgment was set aside.
2. Under Part 24 of the Civil Procedure Rules 1998, the court must be satisfied that the resisting party has no realistic prospect of success and that there is no other compelling reason why the issue should be disposed of at trial. The assessment must be made on the material properly available to the court.
3. The court must not conduct a mini-trial by preferring one apparently convincing account over another where material issues require disclosure, investigation or cross-examination. Evidence from testing arranged by the claimant and involving a party closely connected with the transaction was not independent evidence for this purpose. The incomplete disclosure concerning the identity, movement and testing of the titanium meant that the evidence was not sufficiently satisfactory to support summary judgment.
4. The fresh evidence was admissible. Applying the guidance in Ladd v Marshall [1954] 1 WLR 1489, and the modern summary judgment approach recognised in Three Rivers DC v Bank of England [2001] 2 All ER 513, the evidence from the Chinese manufacturer and the test results could support Cotton’s case and give it some prospect of success. The court could not determine their ultimate reliability on the appeal.
5. The surrounding circumstances, including the Reprocessing Agreement, payments, changing contractual specifications and unexplained testing history, could not be resolved conclusively at the summary judgment stage. The claim therefore required trial.

1. High Court (Queen's Bench Division): On appeal from an order of Master Rose dated 8 November 2007, Mr Justice Eady allowed the appeal and set aside summary judgment.
2. Permission to appeal: Permission was initially refused on paper but granted by Cox J on 19 February 2008.