SC DG Petrol SRL v Vitol Broking Ltd & Ors

Summary judgment is appropriate only where the claim is hopeless or has no real prospect of success. The claimant need not show that its case will probably succeed; it need show only a real or realistic prospect, and the burden rests principally on the defendant. The court must avoid conducting a mini-trial on disputed or developing evidence. An apparently simple claim may still require fuller investigation at trial. Inferential evidence can be sufficient to defeat summary judgment, and the absence of an original document is not necessarily fatal where further evidence may be obtained.

The claimant, a Romanian petroleum-trading company, alleged that the third defendant made a false denunciation to Romanian authorities and that the first and second defendants were also responsible. It claimed that the denunciation caused an investigation, tax assessments and asset seizures, resulting in loss and damage.

The third defendant applied under CPR Part 24 for summary judgment. The first and second defendants made contingent applications on similar terms. The applications focused on whether the denunciation had been received before the investigation began and whether the claimant could prove authorship without the original document.

1. Application refused. The defendant had to show that the claim was hopeless. The claimant needed only to show a real or realistic prospect of success, rather than probable success. This reflected the principles stated in ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 and Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1 (HL).
2. The burden rested firmly on the defendants to establish the negative proposition that the claim had no real prospect of success. The claimant’s burden was, at most, evidential. The approach was consistent with Apvodedo NV v Collins [2008] EWHC 775 (Ch).
3. The court must not conduct a mini-trial under CPR Part 24. Summary judgment was inappropriate where the issues required disclosure, oral evidence or a fuller investigation. The court adopted the caution in Swain v Hillman [2001] 1 All ER 91 (CA), Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), A C Ward & Son v Catlin (Five) Ltd [2009] EWCA Civ 1098 and Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661.
4. The lack of direct evidence that the denunciation had been received before the investigation did not make the claim unreal. The opening of the investigation file, subsequent correspondence and references to the same companies could support an inference that the authorities acted on the denunciation. Those matters required evaluation at trial.
5. The absence of the original denunciation might ultimately prevent success, but was not necessarily fatal at the summary stage. The claimant intended to seek letters rogatory under CPR Part 34 to obtain evidence from Romanian officials and the original document or a copy. The claim was therefore not necessarily doomed to fail.

The third defendant’s application and the contingent applications by the first and second defendants were refused.