Gill & Anor v GB Oils Ltd (t/a) Owen Fuels

Summary judgment is not avoided by a vague assertion that disclosure or cross-examination may reveal a defence. A party must identify and support a properly formulated defence or cross-claim with evidence capable of showing a real issue for trial. Where recovery of a payment depends on mistake, the mistake must be specifically raised and supported. An arguable cross-claim does not prevent summary judgment where, even if pursued at trial, it could not reduce liability below the amount claimed.

GB Oils claimed approximately £600,000 from Mr Gill as guarantor of liabilities owed by South Wales Service Stations and Maesteg Service Stations. The claimant sought summary judgment limited to £450,000.

The judge accepted that alleged overcharging might generate a cross-claim requiring trial, but concluded that the points raised could not reduce liability below £450,000. He gave summary judgment. On appeal, Mr Gill relied on alleged overcharging relating to a predecessor business, disputed invoices, and the possibility that further disclosure would reveal a defence.

1. Appeal dismissed. The summary judgment for £450,000 was upheld.
2. A defendant resisting summary judgment must identify a real defence or cross-claim and provide evidence capable of supporting it. In commercial litigation, parties must come to the hearing prepared with their material. They cannot rely on vague assertions that further disclosure may reveal a defence, or on a general wish to inspect documents and cross-examine witnesses.
3. The proposed challenge to the payment of approximately £358,000 towards JetForge’s liability was not properly formulated. Although the court considered it theoretically arguable that a true volunteer might recover a voluntary payment made by mistake in ignorance of overcharging, neither SWSS nor Mr Gill had said that the payment resulted from such a mistake. The accounts treated the payment as the cost of an intangible fixed asset, and there was no evidential foundation for the proposed cross-claim.
4. The challenges to the Maesteg items were unsupported. The claimant’s detailed evidence was not answered by any detailed evidential response. The judge was entitled to accept it and to conclude that further disclosure would not produce a viable defence.
5. Even taking the alleged overcharging into account, the points raised could not reduce liability below £450,000. No compelling reason for a trial was shown.

• Court of Appeal (Civil Division): [2013] EWCA Civ 860 — appeal from summary judgment entered by His Honour Judge Waksman QC in the Manchester District Registry; appeal dismissed.