Wirsol Energy Ltd v

Where a summary judgment application is properly commenced on the basis of the defences then advanced, the claimant is not required to anticipate wholly new points. The application may properly continue while newly raised issues are investigated and evidence is considered. Once later evidence materially changes the position and makes continuation inappropriate, costs may be divided by reference to the stages of the application. The court may award the claimant its costs up to the point when the new evidence was received and reserve subsequent costs for determination at trial.

Wirsol Energy Limited applied for summary judgment against Toucan Energy Holdings Limited for approximately £6 million allegedly due under an asset life agreement. The defendant initially relied on three defences, which were later abandoned. After proceedings began, it advanced an equitable set-off based on assigned claims and raised a further issue concerning satisfaction or waiver of conditions subsequent, including a condition relating to final acceptance certificates.

The application was withdrawn on 26 November 2018. The remaining issue was the appropriate order for costs, including whether the application had been properly commenced and when it should have been discontinued.

1. The summary judgment application was properly commenced. The claimant was entitled to proceed on the basis of the three defences actually advanced and was not required to anticipate an additional defence which had not been raised. The defendant’s silence after the claimant asserted that the relevant conditions had been satisfied or waived reinforced that conclusion.
2. The assignment of related claims on 1 October did not by itself require the application to be abandoned. It remained worthwhile addressing the existing defences, and the availability of an equitable set-off was not automatic merely because the claims arose within a wider contractual package.
3. The evidence served on 16 October materially changed the position by introducing the condition 49 issue and developing the set-off case. The claimant was entitled to investigate that new issue and consider the subsequent correspondence and evidence. The application could not properly continue beyond the point at which the evidence from Gowling on 20 November heightened the issue, although the court did not finally determine the precise earlier termination date.
4. The claimant was awarded its costs on the standard basis up to and including receipt of the defendant’s 16 October evidence, allowing a reasonable period to study it. Costs thereafter were reserved. The defendant was not entitled to its costs from the outset or to indemnity costs.

First-instance decision. No appellate history is stated in the judgment.