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Summary judgment applications: an insurmountable threshold?

The recent judgment[1] from Waksman J on two interlocutory applications in the ongoing VW NOx Emissions Group Litigation has highlighted just how difficult it is to surmount the threshold required for a summary judgment application to succeed.

In the VW NOx Emissions Group Litigation the Claimants consist of around 86,000 owners of VW, Audi, Skoda and SEAT diesel cars, who all use the EA189 engine or a relevant variant of it. The seven Defendants comprise manufacturers of the vehicles, a company that provided finance to some of the Claimants, and a group of VW Authorised Dealers. The foundation for the claims is that the engines contained what is known as a “defeat device”, which enabled it to pass tests in relation to the maximum permissible levels of Nitrogen Oxide and Dioxide (“NOx Emissions”). The Claimants advance, inter alia, a claim in fraudulent misrepresentation (the Deceit Claim) and claims for breach of contract, including that the cars were not of satisfactory quality.

In December 2021, Waksman J heard two interlocutory applications; the Claimants applied for summary judgment in respect of the allegation that the cars were not of satisfactory quality; and the Defendants applied to strike out or summarily dismiss the Claimants’ Deceit Claim.

Under CPR 24.2, an applicant may obtain summary judgment against the other party if their defence (or claim) has no real prospect of success and there is no other compelling reason for a trial. The burden of showing this rests upon the applicant. “Real” means “not fanciful”.

Waksman J dismissed both applications, holding that the applicants on both applications had failed to show there was no real prospect of the other party succeeding in their claim or defence and, in addition, that there were compelling reasons for a trial. He considered that the issues of satisfactory quality and the Deceit Claim were issues that should be considered at a trial and not determined in the absence of all relevant findings of fact. There were points of law for both issues that couldn’t appropriately be dealt with summarily. It was also noted that there would remain a substantial trial in any event, and that evidence on these aspects of the claims would be relevant and admissible for other aspects that would be being heard at the trial in any event.

Another example of the high threshold for summary judgment is provided by the case of Hewes v (1) West Hertfordshire Hospitals NHS Trust (2) East of England Ambulance Service NHS Trust (3) Dr Tanna, a clinical negligence case in which the Claimant alleged that there had been a negligent delay in the diagnosis of cauda equina syndrome. In 2018 Master Cook heard, and allowed, an application by the Third Defendant (an ‘out-of-hours’ GP) for summary judgment in his favour[2]. Master Cook concluded that the Third Defendant had adduced credible evidence that he had acted in accordance with a responsible body of medical opinion and that the Claimant had failed to persuade him that he had a realistic as opposed to fanciful chance of proving that the Third Defendant had not done so at trial. Notably, the summary judgment application had been heard ahead of the deadline for exchange of expert reports. Notwithstanding this, Master Cook’s view was that, by the time of the hearing of the summary judgment application, the Claimant had had “ample time” to obtain further comment from his expert on this central question in the case and had failed to provide sufficient further comment to prove that the Claimant’s claim against the Third Defendant had a real prospect of success.

However, Master Cook’s decision was reversed on appeal to the High Court, heard by Foskett J in October 2018[3]. Foskett J disagreed with Master Cook that the Claimant had failed to show a real prospect of success. He considered that the arguments and logic set out and/or suggested by the Letter of Claim and the pleadings were sufficient for it to be impossible to say that the Claimant’s position was unarguable or clearly doomed to fail. Furthermore, he disagreed with Master Cook and considered that it was unreasonable to expect or require the Claimant to produce a more detailed response to the Defendant’s expert evidence ahead of the deadline for exchange of the expert evidence. At paragraph 45 of his judgment he observed that there will be few cases where an application for summary judgment could ordinarily be contemplated before the relevant experts’ reports had been exchanged and, in most cases, until after the experts had discussed the case and produced a joint statement.

Ultimately, the Third Defendant successfully defended the claim when it was heard at trial in 2019 and the Claimant’s subsequent appeal to the Court of Appeal was dismissed[4]. At paragraph 99 of the Court of Appeal’s judgment, Davis LJ commented that he was “…most surprised, given the circumstances, that the claim against the GP was pursued at all…”.

Overall therefore, the success of the appeal against Master Cook’s decision is a stark reminder of how difficult it will be for an applicant on a summary judgment application in a clinical negligence matter to be successful where Bolam/Bolitho arguments are in issue. On Foskett J’s reasoning, certainly the expert evidence would likely need to have been concluded first. But even then, it seems likely that these would in many, if not most, cases be deemed issues that should be aired at trial.

Written by Lara Knight.

20 January 2022.


[1] [2021] EWHC 3444

[2] [2018] EWHC 1345

[3] [2018] EWHC 2715

[4] [2020] EWCA Civ 1523

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