Global Draw Ltd v IGT-UK Group Ltd & Anor

Summary judgment may be refused where contractual construction depends on unresolved factual issues or evidence that has not been tested. The court may also permit a defence where there are compelling reasons for the issue to be determined at trial, even if the defendant’s prospects of defending the claim are arguable. An indemnity covering claims and associated costs may apply to defence costs incurred within the contractual period, regardless of whether the underlying claim ultimately succeeds, where the claim is expressly within the indemnity’s scope. Issues of quantum, reasonableness and recoveries may remain for trial.

Global Draw sought summary judgment and declarations under a share purchase agreement indemnity given by IGT-UK in relation to the SNAI Matter. The indemnity concerned proceedings in Italy arising from allegedly defective or malfunctioning gaming equipment supplied by Barcrest, including the Tesi claim and later proceedings in Rome. IGT disputed the contractual construction and contended that factual issues remained, including whether relevant defects existed before completion and whether any loss had been suffered or incurred within the indemnity period.

The court also considered the procedural position that other claims between the parties would proceed to a fixed trial in any event. The central issues were whether the declarations could properly be granted summarily and, separately, whether costs incurred in defending the Tesi claim fell within the indemnity.

1. Summary judgment. The application was granted only in relation to the costs and expenses of the Tesi litigation incurred within the contractual indemnity period. The remaining declarations were not granted summarily.
2. The Rome proceedings raised potentially material factual issues concerning the nature of SNAI’s claim and the extent to which the alleged defects arose before or after completion. Evidence from Global Draw’s technical officer could not resolve those issues summarily because IGT was entitled to answer it.
3. The construction issues were not straightforward, and the court was not satisfied that it necessarily had all evidence required for final interpretation, with reference to ICI Chemicals & Polymers Limited v TTE Training Limited [2007] EWCA Civ 725. The fact that the action would proceed to trial in any event, together with the substantial potential liability and unresolved issues about the effect of the declarations, provided compelling reasons for trial under CPR rule 24.2(b).
4. As to the Tesi litigation costs, the claim was expressly included within the definition of the SNAI Matter. Costs incurred by Global Draw in connection with that claim plainly fell within clause 9.9(n), so far as incurred within the contractual window. It was immaterial for this purpose whether the Tesi claim ultimately succeeded or whether an actual defect was established. Issues concerning quantum, reasonableness and credit for costs recovered elsewhere remained unresolved.
5. The parties were to draw up an order giving effect to those conclusions and could agree further directions.