Unknown case

Summary judgment may be granted where the defendant has no real prospect of successfully defending the claim and there is no other compelling reason for a trial. A real prospect is less than probable but more than fanciful or merely arguable. The court must not conduct a mini-trial, but may reject evidence or assertions which are inherently implausible or lack credibility.

Where there is uncertainty about an agent’s title to sue, the court may resolve the issue by joining the principal lender as a claimant if that is desirable for resolving all matters in dispute. Declarations may be granted where they are accurate and serve a useful purpose. Contractual provisions empowering a security agent to enforce security and act for finance parties may justify declaratory relief.

The claimants sought summary judgment for unpaid sums under two English-law facility agreements relating to Brazilian bus concessions. The original lender had transferred the loans to AB Svensk ExportKredit, while HSBC Bank plc acted as agent and Banco Bradesco S.A. as security agent.

The defendants failed to acknowledge service, serve a defence, attend the hearing or identify any arguable defence. Following the hearing, the court raised a question concerning the agent’s and security agent’s title to sue. The current lender was joined as a claimant with its written consent. The issues were whether the claims should proceed in the defendants’ absence, whether the claimants had standing, whether summary judgment was appropriate, and what monetary and declaratory relief should be granted.

1. Proceeding in the defendants’ absence. The defendants had received sufficient notice, had ample opportunity to attend or be represented, and had voluntarily failed to engage. There was no reason to expect an adjournment to produce participation. The court therefore proceeded, while requiring counsel to draw attention to points which the defendants might reasonably have raised.
2. Summary judgment. Applying CPR 24.2, the court found that the defendants had no real prospect of successfully defending the claims and that there was no other compelling reason for a trial. The evidence established defaults under both facility agreements, valid acceleration notices, unpaid principal, interest, costs and expenses, and enforceable guarantees.
3. Title to sue. It was debatable whether the payment mechanics clause permitted the agent to sue for sums owed to the lender, or whether assignment or specific authority was required. The court did not decide that question because AB Svensk ExportKredit was joined as a claimant under CPR 19.2(2)(a) and CPR 19.4. The joinder was desirable to resolve all matters in dispute, and the claimants thereafter had sufficient standing.
4. Security-agent powers. The security agent was entitled, after an event of default, to enforce the security documents, act as attorney-in-fact for the finance parties, and hold the security property on trust for them under the contractual provisions and Schedule 8.
5. Relief. Judgment was entered for the principal sums, interest to be calculated, contractual costs and expenses, and legal costs. Costs were summarily assessed at US$35,000 for each facility. The court also granted declarations that the facility agreements were valid under English law and that the security agent was entitled to enforce the relevant security documents. The declarations served a useful purpose in facilitating enforcement in Brazil.

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