By Peter Yates
In Dodd v Raebarn Estates Ltd and others  EWCA Civ 439 the Court of Appeal gave brief but useful guidance on the correct approach to summary judgment applications.
Paul Dodd, who had been staying in a flat in London, went to go downstairs. As he was walking down the stairs he lost his footing on the lowest flight of stairs, fell, and suffered catastrophic head injuries. Following two years in a coma, he died.
His wife brought a claim under the Defective Premises Act 1972. There were three tiers of interest in the building in question. The freehold was held by Raebarn Estates Ltd (and was in fact transferred to sister companies, with all three Raebarn companies being dealt with together for the appeal). Under Raebarn was the head lessee, Kensington Park Road 1995 Ltd, who had obtained a 125-year lease of the building, including the staircase and entrance hall. Finally, the underlease of the particular flat in which Mr Dodd had been staying was held by Mr Pereira. Mr Dodd’s wife brought claims against the holders of all three tiers of interest.
In 1988 the head lessee had sought, and obtained, planning permission to reconfigure the staircases in the relevant part of the building, on the basis of a drawing which showed a handrail. It appeared likely that the handrail was in fact omitted. An alternative theory – which the judge at first instance had dismissed as “speculative and fanciful” – was that the handrail had been installed at the time of the reconfiguration, but that it had been removed at some point between 1988 and 1995.
The experts in the case were agreed that the lack of a handrail and the steepness of the reconfigured stairs constituted a breach of the Building Regulations which had been in force at the time of the reconfiguration.
Much of the judgment focuses on the scope of the 1972 Act. The significant procedural point arose in the course of the Court’s analysis of the Claimant’s alternative hypothesis – that a handrail had been installed but subsequently removed.
Counsel for the Claimant contended that there was sufficient indirect evidence that this was the case to justify taking the matter to trial. It was noted that: the original staircase had had a handrail; a handrail was required both by Building Regulations and by the grant of planning permission; the contractor must have anticipated that a building inspector would not have signed off on the project in the absence of a handrail; and Raebarn’s own expert had indicated that handrails are frequently removed in residential conversions when they make it difficult to move furniture up and down stairs. He conceded that there was no other relevant evidence that might have turned up at trial, save for that which might have turned up during cross-examination of Raebarn’s witnesses.
Lewison LJ dealt with this issue as follows:
“35. Mr Stevens reminded us of Lord Hobhouse’s observation in Three Rivers DC v Bank of England (No 3)  2 AC 1 at  that the criterion which must be applied at the stage of summary judgment is “not one of probability; it is absence of reality.” Precisely what that means was amplified by this court in ED & F Man Liquid Products Ltd v Patel  EWCA Civ 472 in which Potter LJ said at  that the party against whom summary judgment is sought must have “a case which is better than merely arguable”, and as I read his judgment he said that such a case must carry “a real conviction”.
36. Moreover as Lord Hobhouse himself said in Three Rivers in the same paragraph:
“The important words are ‘no real prospect of succeeding’. It requires the judge to undertake an exercise of judgment. He must decide whether to exercise the power to decide the case without a trial and give a summary judgment. It is a ‘discretionary’ power, i.e, one where the choice whether to exercise the power lies within the jurisdiction of the judge. Secondly, he must carry out the necessary exercise of assessing the prospects of success of the relevant party. If he concludes that there is ‘no real prospect’, he may decide the case accordingly . . . . Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the ‘bottom line’ is what ultimately matters.” (Emphasis added [by Lewison LJ])
37. In addition Lord Hobhouse said at :
“The hope that something may turn up in cross-examination of a witness at the trial does not suffice.”
38. Thus the role of the judge was to conduct an evaluation. An appeal court should be slow to interfere with an evaluation carried out by a first instance judge. Given the extent of the evidence before the judge, and Mr Stevens’ inability to point to any further evidence that might become available at trial (apart from what might turn up in cross-examination) I consider that the judge was entitled to conclude that the alternative hypothesis that there was a handrail which was subsequently removed was “speculative and fanciful”. He may have slightly overstated the position in saying that there was “simply no evidence” rather than the more nuanced “no direct evidence”, but in my judgment that does not invalidate his conclusion. The only evidence was that subsequent removal could have happened. There is no evidence that it actually did.”
A useful reminder; notwithstanding the relatively low threshold a party’s case must reach in order to overcome an application for summary judgment, it is not sufficient simply to wait for trial and hope for the best.