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Summary judgment can be a powerful weapon for a claimant in a dispute. However, is it appropriate for an essentially factual dispute? This was considered by Akenhead J in Savoye & Savoye v Spicers  EWHC 33 (TCC)).
The claimants (Savoye) obtained an adjudication decision in their favour and sought to enforce it through a summary judgment application. The defendant (Spicer) sought to argue that the adjudicator did not have jurisdiction to hear the dispute on the basis that the conveyor belt, the machinery in the centre of the dispute, was not a construction operation as defined by s 105 of the HGCRA 1996. The factual dispute was whether the conveyor system could be said to 'form part of the land' as required by s 105.
There were three summary judgment applications. The first in which evidence was presented, the second at which Spicer sought and was granted permission to adduce further evidence and the third at which the application was refused. At that point Akenhead J pursued a site visit and expedited trial with oral evidence, a trial which Savoye won.
Akenhead J considered that it had been appropriate for Savoye to commence a summary judgment application to enforce an adjudicator's decision in their favour - a key method of enforcement. The key issue was whether the application should have been continued in light of the evidence which was submitted by Spicer in contesting the application.
The position was finely balanced between the two parties and in such cases, the court will invariably make a decision not to allow the summary judgment. In this case Spicer made an application for and obtained an order permitting them to adduce more evidence in opposing the summary judgment application.
At the same time Spicer suggested that the summary judgment application be vacated and that the TCC hear the dispute as a trial two months later as an expedited trial. Savoye decided to press on with their application but there were delays in doing this so it was eventually heard just a few weeks before a trial could have taken place.
Ultimately the application was dismissed with Akenhead J taking the view that the factual issues could not be resolved through such an application rather a site visit and oral evidence was required.
In the costs judgment, Akenhead J considered that Savoye should bear the costs of the final application at which the summary judgment was unsuccessful on the basis that they had taken the risk that the court would be unable to determine the factual issue at a summary judgment application. Spicer were to bear the costs of the hearing at which they sought to adduce further evidence as Akenhead J considered that this could have been done at the first hearing so alleviating the need for the subsequent hearing just to deal with adducing additional evidence.
This case provides some guidance for those involved in cases in which a summary judgment application is sought and there is opposition on a factual basis.
Careful consideration needs to be given as to whether the factual dispute between the parties is such that the court will simply be unable grant summary judgment. It might be appropriate, as in this case, to agree to a site visit and an expedited trial with oral evidence.
Note: this case arose out of an adjudication which can have the benefit of being heard quickly and at the same time as construction work is progressing. If the disputes between the parties are factual, it is important to consider the use of photographs and other media capabilities to capture the site information contemporaneously and before any further work effectively 'covers up' the areas of dispute. (The Board of Trustees of National Museums and Galleries on Merseyside v AEW Architects and Designers  EWHC 3025 (TCC))
This is also an important decision as to the impact of failing to consider costs proportionality. For information on that aspect of the case, see here.
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Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.
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