Perry & Anor v Neupert

Summary judgment is inappropriate where the outcome depends on a serious dispute of fact, particularly where witness credibility and cross-examination may be decisive. The question is whether the relevant prospect of success is real, rather than fanciful or merely arguable. Although the test is straightforward, its application may be difficult before the evidence has been tested at trial. A short, focused trial should be ordered where the remaining dispute can be determined efficiently. The court should apply the overriding objective by confining the trial to issues that remain relevant.

The appellants appealed against Master Shuman’s decision granting summary judgment on the respondent executor’s counterclaim. The proceedings concerned an application under section 50 of the Administration of Justice Act 1985 for the respondent’s removal as executor and the appointment of replacement personal representatives.

By the time of the hearing, the parties agreed that the respondent should stand down. The remaining dispute concerned the suitability and identity of the proposed replacements, including whether the appellants had prejudged significant potential liabilities of the estate. The central issue was whether that dispute could properly be resolved summarily or required a short trial.

1. Appeal allowed. The parties agreed that the respondent should be removed as executor. The remaining issue was the identity of a suitable replacement, together with any relevant questions concerning the appellants’ fitness to act.

2. The summary judgment test is whether the relevant prospect of successfully establishing the facts is real, meaning more than fanciful or merely arguable. The practical application of that test may be difficult because a trial judge benefits from tested evidence, fuller submissions and more time for reflection. The court applied the principles stated by Mummery LJ in Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Company 100 Ltd [2006] EWCA Civ 661.

3. The Master was entitled to regard the appellants’ pleaded allegations as raising concerns about whether they had prejudged potential debts owed by the estate. However, it was not necessarily inconsistent for a person to express a present belief while remaining open-minded pending access to the full evidence. The appellants’ evidence was not incredible or obviously irreconcilable with their earlier statements.

4. Because the dispute involved credibility and allegations of dishonesty, the appellants should have the opportunity to vindicate themselves in cross-examination. A trial was therefore unavoidable. Any further relevant allegations, including material concerning the Liechtenstein trusts, had to be tested at trial rather than determined summarily.

5. The trial should be limited to the issues remaining in dispute and should last no more than two to three days. If the creditor renewed its application to participate, it should be represented at trial and permitted to express its view. The matter was remitted for that confined trial.

• High Court (Chancery Division): Appeal from Master Shuman’s judgment dated 23 January 2018. The appeal was allowed and a short, confined trial directed.