Claim No: BL-2022-002046 - [2025] EWHC 2534 (Ch)

Before setting out the background to the applications and then turning substantively to the applications themselves, I need to set out what I regard to be the correct approach to their determination, in the circumstances of this case and as the applications have been presented.

In the case of each of the reverse summary judgment, strike out and amendment applications, ultimately the same question needs to be answered; namely, whether the claimant’s pleaded allegations have a real prospect of success. It is true that the burden of proving, or disproving, that may fluctuate and may be different depending on the particular application being considered, and it is true too that I may only give reverse summary judgment if I am satisfied that there is no compelling reason why the claim should proceed to trial (albeit that no-one has suggested that there is a compelling reason for the claim to proceed to trial if the claimant’s allegations do not have a real prospect of success). Nevertheless, as I have just said, the principal question I need to answer, on each application, is whether the claimant’s pleaded allegations have a real prospect of success.

In the context of an amendment application, Popplewell LJ explained what a “real prospect of success” amounts to in Kawasaki Kisen Kaisha Ltd. v. James Kemball Ltd [2021] 3 All ER 978, at [16]-[18], thus:

“It was common ground that on an application to serve a claim on a defendant out of the jurisdiction, a claimant needs to establish a serious issue to be tried, which means a case which has a real as opposed to fanciful prospect of success, the same test as applies to applications for summary judgment…

The Court will apply the same test when considering an application to amend a statement of case, and will also refuse permission to amend to raise a case which does not have a real prospect of success.

In both these contexts:

(1)

It is not enough that the claim is merely arguable; it must carry some degree of conviction…

(2)

The pleading must be coherent and properly particularised…

(3)

The pleading must be supported by evidence which establishes a factual basis which meets the merits test; it is not sufficient simply to plead allegations which if true would establish a claim; there must be evidential material which establishes a sufficiently arguable case that the allegations are correct…”

Also on the question of necessary strength of the claimant’s case and the nature of their evidence in response to a reverse summary judgment application, Lewison J explained in Easyair Ltd v. Opal Telecom Ltd [2009] EWHC 339 Ch at [15], to similar effect:

“(i)

A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v. Patel [2003] EWCA Civ 472 at [8]

…

(v)

…in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v. Hammond (No 5) [2001] EWCA Civ 550…

(vi)

…the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63…” (emphasis added).

Two further inter-related principles apply, in particular, to the determination of each of the applications. As Lewison J also summarised in Easyair Ltd at [15]:

“(iii)

In reaching its conclusion the court must not conduct a “mini-trial”…

…

(vii)

…it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it…If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction…”

Similarly, in Okpabi v. Royal Dutch Shell plc [2021] 1 WLR 1294, like Kawasaki a jurisdiction challenge, Lord Hamblen JSC emphasised, at [107], that the court’s focus must be“on the pleaded case and whether that discloses an arguable claim, [and that] the court [must not be] drawn into an evaluation of the weight of the evidence and the exercise of a judgment based on that evidence. That is not its task at this interlocutory stage”(and see, in relation to strike out applications, Hughes v. Colin Richards & Co [2004] EWCA Civ 266 and Bridgeman v. Mc-Alpine Brown, unreported, 19 January 2000).