Andric v Credit Suisse (UK) Ltd & Anor

On an application for strike-out or summary judgment, the question is whether the claim has a realistic prospect of success. The court must assess the evidence critically, but must not conduct a mini-trial. A claim may proceed despite serious weaknesses where its prospects are more than fanciful and disputed witness evidence is not conclusively contradicted by contemporaneous documents. Only in exceptional cases, where the factual context and legal issues are straightforward and the probabilities overwhelming, may disputed direct evidence be rejected summarily. The application should therefore be dismissed where resolution of the claim depends on assessing witness credibility and interpreting complex supporting documents.

Mr Milos Andric claimed losses arising from a failed property transaction. He alleged that his former company, Brova, had been induced to participate by misrepresentations made by an employee of Credit Suisse (UK) Ltd. The alleged losses included an €8.25 million deposit said to have been paid or forfeited in connection with a €320 million credit line, further consequential losses and liability under a guarantee.

Credit Suisse applied to strike out the claim or obtain summary judgment. It argued that the alleged agreement, payment and forfeiture of the deposit could not be proved. The central issue was whether the claim had no realistic prospect of success or instead raised factual issues that should be resolved at trial.

1. Credit Suisse’s application for strike-out or summary judgment was dismissed. The applicable test was whether the claim had a realistic prospect of success. The court had to use its critical faculties and require the case to carry some degree of conviction, while avoiding a mini-trial: Mellor v Partridge [2013] EWCA Civ 477 and AAI Consulting Ltd v The FCA [2016] EWHC 2812 (Comm).

2. The claimant’s evidence concerning the alleged Brova-BES agreement was weak and likely to face serious difficulties at trial. Nevertheless, deciding that the evidence was fanciful would require the court to conclude that the claimant or another witness was lying. That would impermissibly involve a mini-trial.

3. Although disputed direct evidence may exceptionally be rejected on a summary application where the factual context and legal issues are straightforward and the probabilities overwhelming, this was not such a case. The circumstances surrounding the alleged payment and forfeiture of the deposit were complex and supported, at least in part, by documents. The principle stated in Allied Fort Insurance Service Ltd v Ahmed [2015] EWCA Civ 841 did not justify summary rejection of the claim.

4. The claimant faced substantial difficulties in proving the agreement, payment and forfeiture. However, his evidence was supported by evidence from other witnesses and by documents which could not fairly be dismissed as devoid of probative value. The claim therefore had some, albeit limited, conviction and prospects of success that were more than fanciful.

5. The claims for further losses and under the guarantee were not shown to require separate dismissal once the principal claim remained. The application was dismissed.