CH-2025-000032 - [2025] EWHC 2988 (Ch)

It was common ground before me that the tests that the Judge should have applied were those under CRR 3.4(2)(a), so far as the application to strike out was concerned, and under CPR r24.3(a), so far as the application was for summary judgment. Under the former test the issue is whether or not the Particulars of Claim disclose no reasonable grounds for bringing the claim and under the latter test the issue is whether or not the Claimant is shown to have no real prospect of succeeding on his claim.

I did not understand Mr Karim to dissent from the main propositions advanced by Mr Steadman in his skeleton argument below with regard to the applicable principles. For present purposes I adopt (with minor modifications) those submissions. They include the following.

The test for striking out for “no reasonable grounds for bringing the claim” is the same as the “no real prospect of success” test for summary judgment: Maranello Rosso Ltd v Lohomij BV [2021] EWHC 2452 (Ch) at [23]–[25], applying Nugee LJ’s judgment in Libyan Investment Authority v King [2021] 1 W.L.R. 2659.

The principles were summarised by Lewison J (as he then was) in Easyair Ltd v Opal Telecom Ltd [2009] EHC 339 (Ch) at [15] (and approved in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098 at [24]). In Amersi v Leslie [2023] EWHC 1368 (KB) at [142] the summary was added to and slightly recast as below):

“(1)

The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All E.R. 91. The criterion is not one of probability; it is absence of reality: Three Rivers DC -v- Bank of England (No.3) [2003] 2 AC 1[158] per Lord Hobhouse.

(2)

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

(3)

In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman. This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court, and in some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; Optaglio v Tethal [2015] EWCA Civ 1002 [31] per FFloyd LJ.

(4)

However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application, 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 at [19]; Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63.

(5)

Nevertheless, to satisfy the requirement that further evidence “can reasonably be expected” to be available at trial, there needs to be some reason for expecting that evidence in support of the relevant case will, or at least reasonably might, be available at trial. It is not enough simply to argue that the case should be allowed to go to trial because something may “turn up”. A party resisting an application for summary judgment must put forward sufficient evidence to satisfy the court that s/he has a real prospect of succeeding at trial (especially if that evidence is, or can be expected to be, already within his/her possession). If the party wishes to rely on the likelihood that further evidence will be available at that stage, s/he must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court. The court may then be able to see that there is some substance in the point and that the party in question is not simply playing for time in the hope that something will turn up: ICI Chemicals & Polymers Ltd -v-TTE Training Ltd [2007] EWCA Civ 725 [14] per Moore-Bick LJ; Korea National Insurance Corporation -v- Allianz Global Corporate & Speciality AG [2008] Lloyd’s Rep IR 413 [14] per Moore-Bick LJ; and Ashraf -v- Lester Dominic Solicitors & Ors [2023] EWCA Civ 4 [40] per Nugee LJ. Fundamentally, the question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success: Okpabi -v- Royal Dutch Shell Plc [2021] 1 WLR 1294 [128] per Lord Hamblen.

(6)

(Lord Briggs explained the nature of the dilemma in Lungowe -v- Vedanta Resources plc [2020] AC 1045 [45]:

“… On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue…”

(7)

The Court may, after taking into account the possibility of further evidence being available at trial, and without conducting a ‘mini-trial’, still evaluate the evidence before it and, in an appropriate case, conclude that it should “draw a line” and bring an end to the action: King -v- Stiefel [2021] EWHC 1045 (Comm) [21] per Cockerill J).

I note that a recent example of the court “drawing a line” in the context of limitation is McCarthy v Proctor [2025] EWHC 25 (Ch) especially at [21].

The relevant tests and applicable principles are relevant first in determining whether the Judge applied the correct test under grounds of appeal 1 and 2 and secondly in considering whether he applied the test correctly when considering grounds of appeal 3 and 4. I turn to ground of appeal 1.

Mr Steadman submitted that the Judge found that Mr Dewji “may well have” a real prospect of success but that this was not the same as a holding either that Mr Dewji did have a real prospect of success on his claim or that the Particulars of Claim disclosed reasonable grounds for bringing the claim.

Mr Karim submitted that the Judge applied the correct test and in particular that the test is one of a “realistic” prospect of success rather than a “fanciful” one (see Swain v Hillman [2001] 1 All ER 91 at 92j) and that the Judge’s finding that Mr Dewji “may well have” a realistic prospect of success is entirely consistent with that test.

I agree with Mr Steadman that the test as articulated by the Judge and taken literally is the incorrect test. However, and notwithstanding that the Judge had an opportunity to correct the transcript, I consider that this was a mere slip of language and that the Judge, who had detailed written submissions on the point, did not in fact apply the incorrect test, but the one set out expressly in the rules and discussed over some pages in the Skeleton arguments before him. In effect, he was saying that the Claimant might well succeed at trial which is the same as saying he had (at least) a real prospect of success.

As regards the criticism that the Judge found that the prospects of success of Mr Dewji were by reference to “some points” rather than to the claim itself is, in my judgment, another slip in oral delivery.

I would not therefore uphold the first ground of appeal.