CA-2025-001477 - [2025] EWCA Civ 1360

The Judgment

At [5]-[7] the judge addressed the law relating to strike out and, in particular, CPR rule 3.4 and Practice Direction 3A. As the judge correctly noted at [7], the focus must be on the facts as pleaded although, as he said, if the court thought that the failure of the statement of case to set out necessary facts could be remedied by amendment, and that to permit an amendment was a more proportionate response than an order to strike out, the court had a discretion to permit an amendment.

At [8]-[10], the judge summarised the principles in relation to summary judgment. He cited a number of cases and then, with commendable efficiency, summarised the relevant principles at [10] in the following terms:

“10.

I have regard to what was said in these cases but do not need to set out the relevant dicta here. The following summary will suffice. Summary judgment will be given against a claimant on a claim or issue only if the court is satisfied that the claim or issue has no real, as opposed to fanciful, prospect of success; a claim or issue that is merely arguable but carries no degree of conviction will not have a real prospect of success. The court will not conduct a mini-trial and, where necessary, will bear in mind that full disclosure has not yet taken place and that there might be more evidence to come. Accordingly, where there are disputed questions of fact, it will not generally attempt to determine where the probabilities lie. However, the court ought to carry out a critical examination of the available material and is not bound to accept the mere say-so of anybody; where it is clear that a factual case is self-contradictory or inherently incredible or where it is contradicted by the contemporaneous documents, the court, after careful consideration of the evidence that is currently before it and having regard to the nature of such further evidence as might reasonably be expected to be available at trial, is entitled to reject that case even on a summary basis. The court will not be dissuaded from giving judgment by mere Micawberism—the unsubstantiated hope that “something might turn up”. Importantly, where the claim turns on a point of law that can properly be determined on the available evidence, the court is entitled to go ahead and determine it. The complexity of litigation is not itself a reason for refusing summary judgment: the circumstances may be such that determination of the case is impossible without a trial; on the other hand, it might be possible to analyse the case sufficiently at an early stage and thereby avoid the unnecessary time and expense of the continuation of litigation until trial. In all cases, r. 24.2(b) falls to be considered in principle.”

The judge noted at [20] that the defendant’s argument was that the heads of claim “were either for clearly unrecoverable or purely speculative or imaginary losses or advanced so vaguely and unclearly that they could not support an amendment even if (as is not the case) an amendment were sought”. This is a point touched on again in the body of the judgment. So for example, in relation to the claim for rental income loss, at [28], the judge reiterated that that claim was in principle a valid head of claim “but, if the Wilsons wish to pursue it, they must particularise an actual loss and seek permission to amend.”

At [11]-[16], the judge dealt with the type of damages recoverable in this situation. He spent some time considering whether damages for breach of contract would be the same as damages recoverable for breach of the DPA. He did not think there was any significant difference between the two. The judge then went on to set out the pleadings before, at [21], dealing with each of the disputed heads of loss.

I deal first with the applicable principles, then go on to address each of the disputed heads of loss below.