[2025] EWHC 2035 (Comm)

Unsurprisingly, there was no dispute between the parties as to the relevant legal principles applicable to the court’s power to strike out and/or to enter summary judgment. Under CPR 3.4(2), the court has power to strike out a statement of case, or part thereof, (a) if it appears to the court, that the statement of case, or part thereof, discloses no reasonable grounds for bringing or defending the claim or (b) if it appears to the court 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.

Under CPR rule 24.3, the court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if: (a) it considers that the claimant has no real prospect of succeeding on the claim or issue, or that the defendant has no real prospect of successfully defending the claim or issue and (b) there is no other compelling reason why the case or issue should be disposed of at trial.

The principles were classically formulated by Lewison J. (as he then was) in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] and, more recently, by Floyd LJ. In TFL Management Services Ltd v Lloyds Bank plc [2013] EWCA Civ 1415, [2014] 1 WLR 2006 at [26]-[27] and are summarised in the current edition of Civil Procedure (volume 1) at [24.3.2]. In particular, at [27] Floyd LJ. stated:

“Moreover, it does not follow from Lewison J’s seventh principle that difficult points of law, particularly those in developing areas, should be grappled with on summary applications: see Partco Group Ltd v Wragg, para. 28(7)”.

I was referred to the decision of Roger Ter Haar KC (sitting as a Deputy Judge of the High Court) in Benyatov v Credit Suisse Securities (Europe) Limited [2020] EWHC 85 (QB) at [60] to similar effect, namely that it may not be appropriate to strike out a claim in an area of developing jurisprudence or where its legal viability is sensitive to the underlying facts.

The same is true of difficult points of contractual construction – see the observations of Lord Hodge in Hallman Holdings Ltd v Webster and another [2016] UKPC 3 at [17]:

“… it will often be appropriate to determine a dispute about a short point of law or the construction of a simple contract by summary judgment, where the legal issue between the parties is straightforward and the court is satisfied that there is no need for an investigation into the facts which would require a trial: Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), para 15 propositions (v) – (vii) per Lewison J. Where, in the absence of any factual dispute, more complex legal issues arise, including difficult issues of contractual construction, they may be determined on an application for a preliminary issue …”.

It is also right to consider whether defects in a statement of case may be cured by an appropriate amendment (see the observations of Warby J. in Duchess of Sussex v Associated Newspapers Limited [2020] EWHC 1058 (Ch) at [33](2)) and if necessary, whether the relevant application ought to be adjourned to enable an application to amend to be made.