CCUK Finance Ltd & Anor v Barclays Bank Plc

On summary judgment, the court must assess whether the opposing case has a realistic prospect of success, while avoiding a mini-trial. Factual disputes ordinarily require disclosure and oral evidence. A short point of law or construction may be decided summarily where the court has the necessary evidence and argument, but difficult construction issues should be left for trial where commercial context and practical consequences require fuller examination.

Specific performance is discretionary. Relief is generally inappropriate where damages may be adequate, compliance would require constant supervision and cooperation, or the proposed order lacks sufficient precision.

CompuCredit sought summary judgment concerning Barclays’ alleged obligations under a sale and purchase agreement for a portfolio of credit card accounts. It sought declarations or orders requiring Barclays to take over, or continue indemnifying, a payment-break-plan remediation exercise, payment of outstanding invoices, and dismissal of Barclays’ counterclaim.

Barclays contended that the remediation exercise included payments outside the contractual indemnity and that its past payments had therefore given rise to an unjust enrichment claim. The central issues were whether the agreement required Barclays to conduct the remediation, whether an alleged course of dealing altered the parties’ contractual rights, whether the declarations were appropriate, and whether the invoice claim and counterclaim could be summarily determined.

1. Application dismissed. CompuCredit was not entitled to summary judgment on any of the relief sought. Barclays had a realistic prospect of defending the invoice claim and its counterclaim required determination at trial.
2. The court applied the established summary judgment principles. A party must show a realistic, rather than fanciful, prospect of success. The court must avoid a mini-trial and should consider evidence reasonably expected to be available at trial. Factual issues may be resolved summarily only where there is no real prospect of the relevant evidence being accepted, supported by particularised reasoning. A short legal or construction issue may be decided summarily where the evidence and argument are sufficient, but that condition was not met here.
3. The construction of the performance obligation in clause 11.2 of the sale and purchase agreement could not fairly be resolved on the evidence and argument available. The competing constructions raised commercial and practical issues concerning the transfer of the credit-card business, the handling of customer relationships, information, cooperation and the feasibility of Barclays taking over a remediation process which CompuCredit had operated for years.
4. Even if CompuCredit’s construction were correct, the proposed declaration was in substance specific performance. It was inappropriate summarily because damages might be adequate, compliance would require continuing activity and mutual cooperation involving potential disputes and court supervision, and the order lacked sufficient precision. These objections also applied to the alternative indemnity relief.
5. Barclays had raised a realistic case that payments had been made to customers without valid complaints, without sufficient grounds for concluding that mis-selling occurred, in excessive amounts, or without corresponding loss. Those issues required disclosure and evidence. The alleged “Agreed Practice” was insufficiently particularised and was contradicted by evidence of disagreements, reservations of rights and factual disputes. The court could not conclude summarily that it varied or estopped Barclays from relying on the agreement.
6. The additional declaration was inappropriate because it was linked to a remediation process which arguably included payments outside the indemnity. Barclays’ unjust enrichment counterclaim disclosed a legally arguable case, and the evidence could provide further particularisation of the pleaded case. The counterclaim therefore stood for trial.