CR-2023-001309 - [2025] EWHC 2314 (Ch)

Mr Passfield KC, counsel for the Liquidator, and Mr Willetts, counsel for the respondents, were agreed as to the applicable principles. The power to strike out a statement of case is contained in CPR 3.4, which provides, insofar as it is relevant:

“(1)

In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2)

The court may strike out a statement of case if it appears to the court –

…

(b)

that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;

…

(3)

When the court strikes out a statement of case it may make any consequential order it considers appropriate.”

I shall turn to the principles relating to abuse of process, as applicable to this case, later in this judgment.

The power to grant summary judgment is set out in CPR 24.3:

“The court may give summary judgement against a claimant or defendant on the whole of a claim or on an issue if –

(a)

it considers that the party has no real prospects of succeeding on the claim, defence or issue; and

(b)

there is no other compelling reason why the case or issue should be disposed of at a trial.”

The approach to be taken to this rule was summarised by Lewison LJ (as he then was) in Easyair Limited v. Opal Telecom Limited [2009] EWHC 339 (Ch):

“15.

As Ms Anderson QC rightly reminded me, the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows:

(i)

The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 2 All ER 91;

(ii)

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];

(iii)

In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain v Hillman

(iv)

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. 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]

(v)

However, 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)

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus 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;

(vii)

On the other hand 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. 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.”

In ED & F Man Liquid Products Limited v. Patel [2003] EWCA Civ 472 it was observed thatthe overall burden of proof rests on an applicant to establish that there are grounds to believe that the respondent has no real prospects of success and that there is no further reason for a trial. If the applicant adduces credible evidence in support of the application, the respondent then comes under an evidential burden to prove some real prospect of success or some other reason for having a trial (Sainsbury’s Supermarkets Limited v. Condek Holdings Limited [2014] EWHC 2016 (TCC), per Stuart-Smith J at paragraph 13). Where a respondent to a summary judgment application submits that further evidence will be available at trial, he must substantiate that assertion (see Korea National Insurance Corporation v. Allianz Global Corporate & Speciality AG [2007] EWCA Civ 1066, per Moore-Bick LJ at paragraph 14).