Using Summary Judgment To Defeat Fraudulent Cases

Summary judgment is an effective way to put an end to frivolous, unmeritorious cases. The litigation team at ParrisWhittaker has in-depth experience and a hugely practical understanding of how the courts approach summary judgment applications. We can therefore advise you on the suitability of such an application in your case, and whether other remedies may be available to you. We have used the summary judgment procedure often over the years and in multiple scenarios. Here we look at the likelihood of success where one side seeks a summary judgement because that their opponent’s case is based on some kind of fraud.

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Summary Judgment: The Basics

In the Bahamas the rules on summary judgement were updated and widened in 2022. Under the updated Civil Procedure Rules (Rule 15.2) either side can apply for summary judgment and the court will enter a summary judgment where:

• A claimant has no real prospect of succeeding on the claim or the issue; or
• A defendant has no real prospect of successfully defending the claim or the issue.

In addition the court itself at its own discretion may order a summary judgment so that a full trial is avoided even where neither side has applied for one.

We shouldn’t lose sight of the fact that a successful application for summary judgement has an undoubtedly extreme effect on the litigation: put simply proceedings come to an end. With that in mind courts are reluctant to enter summary judgments without good reason. At a summary judgement hearing there is no room for examining issues of fact. The appropriate place to do this is at trial. Someone opposing an application doesn’t need to show they will win at trial – they only have to persuade the court that they have a real prospect of success at trial.

How Easy Is It To Get Summary Judgment If My Opponent’s Case Is Fraudulent?

As we’ve indicated, summary judgment is a draconian measure available to judges in certain cases. This explains why in certain types of cases the Civil Procedure Rules in the Bahamas prohibit summary judgement applications. These cases include admiralty proceedings in rem, probate proceedings, claims against the Crown, defamation and false imprisonment claims and cases where redress under the Constitution is sought.

Cases where one side argues that the other side’s case is based in fraud can in contrast be the subject of the summary judgment procedure. However in such cases judges are particularly cautious. That’s because getting to the truth of fraud allegations involves substantial factual enquiry by the court, and this would seem to run counter to the idea that summary judgement doesn’t involve deciding issues of fact. That said, there are cases where summary judgement has been issued in fraud cases. We look at one such case below.

Verdi Law v BNP Paribas (2023) – Fraud And Summary Judgment

Verdi Law Group claimed that it was contractually owed £1.2bn because of the part it had played in developing a complex and ongoing financial investment funding transaction involving BNP and others.

BNP bank claimed that Verdi’s claim was in fact a ‘fiction’ – essentially that the transaction it referred to in its claim, countless emails and other messages purportedly sent by the bank were entirely fabricated. In particular the bank relied on evidence from the international payment system SWIFT’s lawyers that message Verdi said the bank had sent through the SWIFT had never in fact been made. The court also found that certain emails Verdi produced had been ‘spoofed’ so as to appear as though they have come from a legitimate BNP Paribas email address when, in fact, they had not.

As with any application for summary judgment the court had to decide if it could reach a decision on whether the documents relied on – in this case by Verdi – were authentic or not. Verdi argued that this could only be done at a full trial. The court disagreed, finding that the defendant BNP bank had produced unanswerable evidence that the documents relied in by Verdi were inauthentic. As a result Verdi had no real prospect of success at trial so summary judgment was appropriate.

Comment

On any interpretation the facts of the case were quite extraordinary. The success of the defendant bank in resisting a £1.2bn claim from the law firm and getting a summary judgment is a useful example of when this type of action is appropriate. The extreme nature of the fraud in the case underscores our experience in these types of cases. That’s to say  that obtaining summary judgment on the basis that the other side’s case is fraudulent is certainly unusual – but not impossible.

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For advice, please feel free to reach out to us at ParrisWhittaker for an initial, no-obligation discussion.