Summary judgment will not be given where there are matters to be determined at trial

The Official Receiver (OR) issued a claim in the liquidation of the company against the sole director and shareholder, Mr Haq, and his wife, Tamina Azad.

 The OR applied for summary judgment against Mr Haq, or for Mr Haq’s defence to be struck out for non-compliance with the rules in the alternative.

The strike out application was not pursued. Further, while the OR had applied for judgment in default against Tamina Azad, proceedings against her were discontinued (service not having been properly effected).

The court considered whether summary judgment should be given in respect of:

  • A salary claim (of £24,005) in circumstances where Mr Haq had no contractual entitlement to salary
  • A payments claim for £137,488.87 (or £74,057.93 in the alternative) for payments made to Ms Azad
  • A DLA claim of £9,304.75

The court found that whilst there was no written contract of employment, there may be a contractual entitlement to salary having regard for the Duomatic principle. Consequently, the salary claim needed to be determined at a trial.

In relation to the payments claim, given that the majority of the payments claim needed to be considered at trial in any event, it was preferable for the court to determine the same with the benefit of having heard all the available evidence, including Mr Haq's full account in respect of all of the relevant payments.

In relation to the DLA claim, it was not clear on the evidence before the court that credits had been considered. Likewise, Mr Haq raised questions over the who had the benefit of the payments. In the circumstances, the court could not be satisfied that Mr Haq had no real prospect of successfully defending the DLA claim at trial.

This case provides an important reminder that it is necessary for the claim to be proved and properly evidenced, even in circumstances where there is little engagement from the respondent.

In the matter of Wifime Limited (in liquidation) [2023] EWHC 3072 (Ch).

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