Vyas & Anor v Nationwide Building Society

On an application for summary judgment, the court must assess whether the claim has a real prospect of success. Where the claimant identifies a material dispute about the accuracy or completeness of documentary evidence, the court should not determine the issue solely from that evidence without considering the competing material. A recording relied on to challenge a transcript may disclose an issue of fact requiring trial. The appellate court may grant permission where an arguable error in the summary-judgment assessment could have affected the result. It may also require the appellant to provide a focused transcript of the recording, identifying gaps and relied-on passages, so that the appeal court can assess whether any error was material.

The claimants brought proceedings concerning alleged assurances given by a building society representative during telephone calls made in connection with a mortgage. They alleged misrepresentation or breach of contract. The defendant applied for summary judgment, relying on transcripts of the calls. The claimants disputed the transcripts’ accuracy and completeness and relied on a CD recording, identifying particular passages and alleged gaps.

A county court recorder accepted that the claim would have presented a real issue for trial without the transcripts, but dismissed it after considering the transcripts. The claimants renewed their application for permission to appeal. The central issue was whether the recorder was entitled to conclude that the claim had no real prospect of success without listening to or otherwise properly considering the recording relied on by the claimants.

1. Permission and appealable issue. The application for permission to appeal was granted. The recorder had applied the correct summary-judgment test, namely whether the claim had a real prospect of success, although the application had been described procedurally as an application to strike out.
2. The claimants’ case was that the defendant’s transcript did not accurately or completely record the telephone conversations. They had identified particular passages on the CD by reference to time-markings and contended that further assurances might have been given during gaps in the recording.
3. In those circumstances, it was arguable that the recorder had placed excessive reliance on the absence of supporting material in the defendant’s transcripts. If the recording supported the claimants’ account, there could be an issue of fact requiring trial. The alleged error could therefore have made a difference to the result.
4. The claimants were directed, within 28 days, to prepare, file and serve their own transcripts of the CD, identifying any recording gaps and the passages on which they relied. This would enable the appeal judge to assess both the alleged error and its materiality.
5. Time for filing the appellants’ notice was extended because the unrepresented claimants had initially filed the papers within time but in the wrong court.

• County court: On 22 March 2019, Mr Recorder Widdup dismissed the claim on Nationwide’s summary-judgment application and ordered the claimants to pay £1,755 costs.
• High Court (Queen’s Bench Division): Permission to appeal was granted. Time for filing the appellants’ notice was extended, and directions were given for transcripts of the CD recording.