[2025] EWHC 1972 (Comm)

To come within CPR r.13.3(1)(a), a defendant must show that they have “a real prospect of successfully defending the claim”. This is essentially the same test as applied to summary judgment applications under Part 24 (see Redbourn Group Limited v Fairgate Development Limited [2017] EWHC 1223 (TCC), per Toulson J (as he then was) at [22]-[24]), although a defendant applying under CPR r.13.3(1):

“may encounter a court less receptive to applying the test in his favour than if he were a defendant advancing a timely ground of resistance to summary judgment”

under CPR r.24.2 (see ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, per Potter LJ at [9]).

The burden rests upon the defendant to satisfy the court that there is good reason why a judgment regularly obtained should be set aside: see ED&F Man, per Potter LJ at [9]. This does not involve the court applying the same standard as would be applicable at the trial, namely the balance of probabilities on the evidence presented; instead, the court should also consider the evidence that could reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550.

In evaluating whether a defendant has a real prospect of successfully defending the claim, the presumption is that the facts relied upon by the defendant are true (see Royal Bank of Scotland v Etridge (No.2) [2002] 2 AC 773, per Lord Scott at [229]) but the court is not required to accept without question any assertion a defendant makes and is entitled to reject assertions of fact which have no real substance: see ED&FMan, where Potter LJ said this (at [10]):

“… where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 95 in relation to CPR 24. However, that does not mean that the court has to accept without analysis everything said by a party 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 contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable ...” (my emphasis).

As Toulson J said in Redbourn Group (at [24]), following Potter LJ’s approach in ED&F Man:

“It is also necessary to see whether a further opportunity to put in further evidence and/or documents would or could make any difference.”

This same approach was adopted by Lewison J (as he then was) when applying the test for summary judgment in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch), where he helpfully summarised what is required at [15]. It was recently confirmed by Cockerill J in King v Stiefel [2021] EWHC 1045 (Comm), where the learned judge reiterated the point that, while the court should also take account of any evidence which could reasonably be expected to be available at a trial, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up:

“21.

The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that – even bearing well in mind all of those points – it would be contrary to principle for a case to proceed to trial.

22.

So, when faced with a summary judgment application it is not enough to say, with Mr Micawber[ (Footnote: ¹)], that something may turn up.”