[2023] EWHC 1480 (IPEC)

Mr Muir Wood referred me to Part 3 and Part 24 of the CPR and the accompanying notes. No bundle of authorities was provided, but Ms McFarland’s written skeleton referred to and quoted from various relevant authorities.

To summarise, CPR 3.4(2)(a) enables the Court to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim. This may be:

CPR 24.2 empowers the Court to give summary judgment against a party which has no real prospects of succeeding on its claim or defence.

I have had in mind these tests and the relevant guidance on both CPR 3.4 and CPR 24.2 as discussed during the hearing. I am grateful to both counsel for their submissions.

Of the many judicial formulations of the correct approach, it is convenient to set out as a guide the portion of the judgment from EasyAir Ltd. v Opal Telecom Ltd. [2009] EWHC 339 (Ch) at [15], approved by the Court of Appeal in AC Ward & Son Ltd. v Catlin (Five) Ltd & Ors. [2009] EWCA (Civ) 1098 to which I was referred by Ms McFarland.

While it refers to claims by defendants for summary judgment against claimants, the test is the same for both parties:

“… the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows:

i)

The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91;

ii)

A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]

iii)

In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman

iv)

This does not mean that the court must take at face value and without analysis everything that a claimant says 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 contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

v)

However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

vi)

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii)

On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”