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

The short point here is that nowhere in the test for strike out or summary judgment is the test adumbrated in terms of the length of time that a hearing will take. Indeed, in the well-known case of Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 700 it was said (by Sir Gordon Willmer):

However, the time that a summary judgment/strike out hearing takes may be indicative that the relevant party has a real prospect of success in their claim/defence and that strike out/summary judgment is not appropriate.

I do not consider that the Judge was saying that the relevant judicial determination process under CPR 3 and CPR 24 would involve a hearing which would take as long as a trial and that that was a separate reason for refusing to accede to the Defendant’s application. Rather, it was a comment upon the factual position as he saw it.

I should add that I do not consider that the Judge was taking the sort of case management decision not to hear an interim application by reason of the prolonged and serious argument that would be needed, as considered under the former Rules of the Supreme Court in, for example, Williams & Humbert v W & H Trade Marks (Jersey) Limited [1986] 1 AC 368 where Lord Templeman said (at 435h-436A):

“My Lords, if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself” (emphasis supplied).

Here the Judge did not refuse to hear the application. In my judgment, and in any event, a day’s hearing and a consideration of the arguments in this case does not involve the sort of prolonged and serious argument under consideration in the Williams & Humbert case. As in the McCarthy case, Mr Dewji has had a full and fair opportunity to raise points he wishes to raise, and the points are fairly short and straightforward. Further there are clearly the countervailing benefits of avoiding a trial and the trial process that the Judge himself referred to in his judgment. If I am wrong as to my assessment of the Judge’s approach and the significance of his reference to the time taken, then I consider his approach would have been wrong.

On the basis of my interpretation of the Judge’s approach, I would not uphold ground 2.