Eronat v CPNC International (Chad) Ltd & Anor [2024] EWHC 2880 (Comm)

Mr Charlie Sorensen instructed by Leverets for the Claimant

MR JUSTICE BRYAN:

A. INTRODUCTION

• There are before me today two applications brought by the Defendants against the Claimant.

(1) The first is the Defendants’ application dated 27 June 2024 for reverse summary judgment (the “Summary Judgment Application”) in relation to the claims in the Claimant’s Arbitration Claim Form dated 16 May 2024 (the “Section 69 Appeal”) in which the claimant appeals the partial arbitration award dated 11 April 2024 (the “Award”) in LCIA Arbitration No 215370 (the “Arbitration”) under sections 69(1) and 69(2)(a) of the Arbitration Act 1996, on the basis that the Section 69 Appeal was not brought within 30 days after the decision of the Tribunal being rendered, and so the Section 69 Appeal stands to be dismissed.

(2) The second is an application by the Second Defendant, dated 13 June 2024, under section 66 of the Arbitration Act 1996 (the “Enforcement Application”), seeking permission to enforce the Award and enter judgment therein.

• The Arbitration arose out of a deed of indemnity dated 19 December 2003 (the “2003 Indemnity”). The Summary Judgment Application is made because the Defendants claim that the Claimant is out of time to make any appeal having regard to the terms of the contractually agreed provision as to appeal in the 2003 Indemnity, and there is no basis, either legal or evidential, upon which he can rely to remedy his failure to bring an appeal in time, the parties having contractually waived all rights to make an application to the Court under the Arbitration Act 1996, except as provided by the arbitration agreement.

• The Enforcement Application is made as of right under section 66 of the Arbitration Act 1996, and irrespective of the outcome of the Summary Judgment Application. The Claimant accepts that the Defendants have a prima facie entitlement to pursue the fruits of the Award and obtain the relief sought under section 66 of the Arbitration Act 1996, but submits that if the Summary Judgment Application is unsuccessful, the Court should exercise its discretion to stay enforcement of the Award pending the outcome of the Section 69 Appeal which is listed for one day on 12 February 2025.

B. APPLICABLE LEGAL PRINCIPLES

B.1 Summary Judgment

• CPR 24.3 states that:

“[A] court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if—

(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

• The applicable principles as to what is meant by “no real prospects of success” are well known, and were common ground. They were summarised in detail in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch) at [15]:

“(i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91;

ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]

iii) In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain v Hillman

iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”

• It is possible to make a summary judgment application based on a defence of limitation to a claim, see Churchil Limited v The Open College Network South Eastern Region Limited (Trading as Laser Learning Awards) [2018] EWHC 457 (QB) at [53] per Nicklin J:

“The existence of a limitation defence may lead to the conclusion that the claim has no real prospect of success but disposing of a claim on such a basis would require an application for summary judgment. […] Equally, it is not abusive to bring a claim that is prima facie time-barred. First, limitation is a matter to be raised as a defence to the claim.”

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