CA-2024-001698 - [2025] EWCA Civ 1136

Lord Leggatt delivered the leading judgment for the majority of the court. For the purposes of this appeal, it is unnecessary to rehearse the analysis and ruling on the main issue in that appeal; the conclusion of the majority on that issue is succinctly summarised at [98] in that judgment.

This appeal calls, instead, for consideration of what Lord Leggatt said (albeit, arguably, obiter), by way of ‘clarification’, about the threshold test for the grant of leave in an application under Part III of the 1984 Act. He addressed this at [86] – [97] of the judgment. Having referenced the first half of paragraph [33] of Lord Collins’ judgment in Agbaje (see above at §32), he went on to address the threshold more fully at [89] – [92], in a passage which attracted the support of the entire court (see Lord Briggs for the minority at [110]) and which for ease of reference, I reproduce in its entirety:

“[89] I would not wish to cast any doubt on the primary guidance given in Agbaje that in the context of section 13 the word “substantial” means “solid”. Nor would I suggest that courts which have applied the test as stated by Lord Collins JSC have applied the law incorrectly. But I think that some clarification is called for of what was said in the first two sentences of the passage quoted at para 86 above [see my §32 above]. It should be made clear that the threshold is higher than merely satisfying the court that the claim is not totally without merit or abusive. It does not seem to me necessary, or advantageous, to further explain the test by comparing it with tests applied in other procedural contexts. If any such comparison is to be made, however, as it was by Lord Collins JSC, the closest analogy seems to me to be with other contexts in which a court has to decide whether a claim should be allowed to proceed to a full hearing or should be dismissed summarily. In ordinary civil proceedings such a question arises when an application is made for summary judgment against a claimant; or to set aside a judgment entered in default; or (as mentioned above) in deciding whether a claim is of sufficient merit that the court should permit service of the proceedings on a foreign defendant. In each of these contexts the test applied is whether the claim has a “real prospect of success”. That is also in substance the test which the court applies in deciding whether to give permission for a claim for judicial review to proceed to a full hearing.

[90] By contrast, the more demanding test of a “good arguable case” does not seem to me apposite. The reason why this higher threshold is appropriate in deciding whether a claim comes within one of the jurisdictional gateways listed in CPR Practice Direction 6B, para 3.1, is that the determination of that question one way or the other is definitive and cannot be considered again later in the litigation. As noted above, that is not the case where leave is granted under section 13, just as it is not the case where the court rejects an application for summary judgment.

[91] A comparison with the well-established approach in ordinary civil proceedings to deciding whether a claim has sufficient merit to avoid summary dismissal and proceed to trial may also assist in clarifying the scope of the inquiry in determining whether leave should be granted under section 13. It would, I think, be difficult to improve on the explanation given by Lord Hope of Craighead in Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1, para 95:

“The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way …”.

[92] Applying this approach to applications for leave under section 13, the judge will need to consider whether, on the factual basis alleged unless it is clearly without substance, there is a substantial (in the sense of solid) basis for saying that in all the circumstances of the case, and having regard in particular to the matters specified in section 16(2), it would be appropriate for an order for financial relief to be made by a court in England and Wales. In making this assessment, it will be necessary to take into account whether there is a real prospect that further material supporting the applicant’s case would emerge, through disclosure or otherwise, if the case were to proceed to a substantive hearing.”