The Plaintiff multinational bank sued two accounting firms for negligent misstatements in connection with financial statements prepared for a former business associate of the Plaintiff. There was no contractual relationship between the Plaintiff and the Defendants. The Defendants applied for Summary Dismissal of the Action on the basis that there was no genuine issue of merit for Trial. The Defendants argued that there are five components to the tort of negligent misrepresentation and that the Plaintiff could not prove four of those components. The Plaintiff argued that some of the elements of the tort could be made out, and those that were unclear should go to Trial.

Master Robertson considered the law of negligent misrepresentation and noted that in this Application for Summary Judgment the questions were: whether, on an examination of the record as a whole, a decision could be made that was fair and just; and whether there was an issue of merit that genuinely required a Trial, or conversely, whether the Defence was so compelling that the likelihood it would succeed was very high. Master Robertson further noted that the “key is whether the circumstances require … viva voce evidence in order to properly resolve the case”. Master Robertson stated that the initial burden lies with the Applicant and must be satisfied on a balance of probabilities. If the burden is satisfied, it then shifts to the Respondent to show that there is a genuine issue of merit for Trial. Each party must put its best foot forward on a Summary Judgment Application.

Master Robertson reviewed the evidence and submissions from the parties and, in the result, dismissed the claim as against three of the Defendants but allowed the claim to continue against two of the Defendants.