BL-2025-000377 - [2025] EWHC 2976 (Ch)

Fecha: 13-Nov-2025

Principles to be applied in respect of summary judgment and strike out

Principles to be applied in respect of summary judgment and strike out

35.

I do not understand the principles to be applied in determining the Application to be in dispute.

36.

So far as an application for summary judgment pursuant to CPR Part 24 is concerned:

The question is whether the respondent to the application can show that they have a “real prospect” of succeeding on the relevant claim or issue, or of successfully defending the relevant claim or issue, as appropriate, within the meaning of CPR 24.2.

ii)

What this means was helpfully explained by Lewison J (as he then was) in his oft approved and applied passage in Easyair Ltd (ta Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15], as approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098 and as referred to in The White Book, 2025 at 24.2.3. In short:

The court must consider whether the respondent to the application has a “realistic” as opposed to a “fanciful” prospect of success.

The question boils down to whether the claim carries some degree of conviction, is more than merely arguable and has reality to it.

The Court should not conduct a “mini trial” in reaching its decision, although that does not mean that it is bound to accept everything that a party says if factual assertions lack reality, particularly if contradicted by contemporaneous documents.

Although micawberism will not assist a party seeking to rely on something that might turn up at trial, the Court should take account of evidence that can reasonably be expected to be available at trial. Thus if reasonable grounds exist for believing a fuller investigation into the facts would add to or alter the evidence available to a trial judge, or if a factual dispute is unlikely to be able to be resolved without reference to further (and especially oral) evidence, then a case should be permitted to proceed to trial – see Three Rivers DC v Bank of England [2003] AC 1, and Doncaster Pharmaceuticals v Bolton [2007] FSR 63 at [18].

On the other hand, if a case or issue can be disposed of on the basis of a short question of law or construction, and all the relevant materials are before the court to enable it to do so, then the Court should grasp the nettle and decide it.

37.

Under CPR 3.4(2)(a), the Court may strike out a statement of case if it appears that it discloses: “no reasonable grounds for bringing or defending claim”. For this purpose, it is to be assumed, broadly speaking, that the relevant facts pleaded in the statement of case are true, the question being whether they disclose a sustainable case in law. A claim may thus be struck out as not being a valid claim as a matter of law – see e.g. Price Meats Ltd v Barclays Bank Plc [2000] 2 All E.R. (Comm) 346.

38.

As submitted on behalf of the Defendants, a statement of case which discloses no reasonable grounds (under CPR 3.4(2)(a)) may also be an abuse of the court’s process (under CPR 3.4(2)(b)), and the other party may also be entitled to summary judgment under CPR Part 24 – see The White Book, 2025 at 3.4.2. As there pointed out, there is no exact dividing line between ground (a) and ground (b), or between either of them and CPR Part 24. Thus, it may be appropriate to combine a strike out application with an application for summary judgment – see The White Book, 2025 at 3.4.21.

39.

A significant difference is that CPR Part 24 allows the summary disposal of issues including preliminary issues by reference to evidence, in the circumstances referred to in paragraph 36(e) above, provided that the court has before it all the evidence necessary for the proper determination of the question and the parties have had an adequate opportunity to address it in argument – see Easyair (supra) at 15(vii), per Lewison J. As Lewison J went on to say:

“The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. 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: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”

40.

On the other hand, if there are reasonable ground to believe that something may emerge on disclosure or otherwise as part of the litigation process that might throw a different light on matters, then summary judgment is unlikely to be appropriate – see, e.g. Okpabi v Royal Dutch Shell Plc [2021] UKSC 3, at [128], per Lord Hamblen JSC.