CL-2023-000396 - [2025] EWHC 1904 (Comm)

The principles applicable to strike-out and summary judgment are well-known: see Easyair v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15]. In this regard, factual averments made in support of the claim should be accepted unless, exceptionally, they are demonstrably untrue or unsupportable: see Okpabi v Royal Dutch Shell Plc [2021] UKSC 3, [2021] 1 WLR 1294 at [107] per Lord Hamblen. Even “very powerful cross-examination ammunition” cannot be equated with a “knock-out blow”: see Mentmore International Ltd v Abbey Healthcare (Festival) Ltd [2010] EWCA Civ 761 at [23] per Carnwath LJ (as he then was). Furthermore, where pleading points are taken on strike out/summary judgment, the Court will usually give a party an opportunity to amend a legally deficient statement of case if it appears that the deficiency can be remedied without injustice to another party: see Soo Kim v Young [2011] EWHC 1781 (QB) at [37]-[41] per Tugendhat J. As to this, proposed amendments must be arguable, carry a degree of conviction, be coherent, be properly particularised, and be supported by evidence that establishes a factual basis for the allegation: see Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33; [2021] 1 CLC 284 at [18] per Popplewell LJ.

The ‘real prospect of success’ test is the same one as applicable to a summary judgment application. A claim does not have such a prospect where (a) it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance; (b) the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or (c) the claimant has pleaded insufficient facts in support of their case to entitle the court to draw the necessary inferences: Elite Property Holdings Ltd v Barclays Bank plc [2019] EWCA Civ 204 at [41] per Asplin LJ.

Where it is reasonably arguable that a relevant limitation period has expired before an amendment is made, the burden is on the applicant to show that the amendment falls within the provisions of CPR r.17.4. The Court has affirmed a four-stage test as set out in Geo-Minerals GT Ltd v Downing [2023] EWCA Civ 648 at [25] per Males LJ. Nonetheless, if a new cause of action is arguably outside the applicable limitation period and does not arise out of the same or substantially the same facts as the existing claim, it is still permissible for the Court to grant permission for the proposed amendment by way of the ‘Mastercard approach’ discussed in Advanced Control Systems Inc v Efacec Engenharia e Sistemas S.A. [2021] EWHC 914 (TCC) and revisited later in this judgment when considering the proposed California law claim.