BL-2024-000734 - [2025] EWHC 3003 (Ch)

The first ground of appeal is that I erred in law in treating the principles applicable to an application to strike out the claim form and particulars of claim under CPR rule 3.4(2) (on the grounds that they disclose no reasonable cause of action) as the same as those applicable to an application for reverse summary judgment under CPR rule 24.3. This is clearly wrong as regards the principles themselves – as Henderson J said in High Commissioner For Pakistan v The Nizam Of Hyderabad [2016] EWHC 1465, when confronted with an application to strike out under CPR 3.4(2)

“… nobody submitted to me that there is any material difference between the test of "no real prospect" of success in Part 24 and "discloses no reasonable grounds for bringing or defending the claim" in rule 3.4(2)(a).” (at [17]).

I also note that at no point during the hearing did either side suggest that the question of whether the issue before the court related to strike-out or reverse summary judgement had any bearing on the particular issues considered, and it is somewhat surprising to see it raised for the first time as a ground of appeal.

I think that the specific point made by the Claimants is not in fact that there is a material difference between the two standards, but that there is a difference of approach between the two applications. In a strike-out application, the basis for the application must be the construction of the claim form itself, whereas in an application for summary judgment it may be permissible to consider matters of evidence (although not to conduct a mini-trial of such evidence).

The basis of the appeal in this regard is that I proceeded by addressing matters of evidence which I should not have done in a strike-out application. This could in theory be a valid ground of appeal if the Defendants’ application had been for a strike-out only, and not for both strike-out and reverse summary judgment. However, it was not. I would therefore be entitled to dismiss this ground on the basis that, even if it were established, it would not give rise to a “success” within the meaning of CPR 52.6(1)(a) in that it would not change the outcome of the litigation or the form of the order.

It may nevertheless be helpful to consider whether the argument is a real one. It clearly does not apply to the majority of the grounds of appeal, which are based on suggestions that I should have considered that there might be further evidence available, rather than that I had considered matters of evidence which I should not have done. I think that the only ground where this point arises is Ground 4, where it is suggested that I relied on a finding of “ordinary commercial practice” in reaching my decision. For the reasons given in para [22] below in my discussion of Ground 4, I do not think that this point has any substance. This ground of appeal therefore has no reasonable prospect of success.