KB-2024-000763 - [2025] EWHC 2791 (KB)

The decision in Burnford v Automobile Association Developments Ltd, BL-2021-000731 provides some assistance on the question of overlap between a summary judgment application and whether a defendant failing to prove grounds for summary judgment must necessarily fail on its strike out application too. HHJ Paul Matthews said at [20], when comparing and contrasting the two types of application, “These two methods of summarily disposing of a claim without a trial are frequently combined in the same application, as in this case. But it is clear that an application under rule 3.4 is not one for summary judgment: see eg Dellal v Dellal [2015] EWHC 907(Fam). It is generally concerned with matters of law or practice, rather than with the strength or weakness of the evidence. So on an application to strike out, the court usually approaches the question on the assumption (but it is only an assumption, for the sake of the argument) that the respondent will be able at the trial in due course to prove its factual allegations. On the other hand, on an application for summary judgment, the court is concerned to assess the strength of the case put forward: does the respondent's case get over the (low) threshold of “real prospect of success”? If it does not, then, unless there is some other compelling reason for a trial, the court will give a summary judgment for the applicant”.

At [21] the Judge continued, by reference to the judgment of Coulson LJ in Begum v Maran (UK) Ltd [2021] EWCA Civ 326 at [20] “in a case like this (where the striking-out is based on the nature of the pleading, not a failure to comply with an order), there is no difference between the test to be applied by the court under the two rules”. Then continuing at [21], “accordingly, I do not agree with the judge’s observation at [4] that somehow the test under r.24.2 is “less onerous from a defendant’s perspective”. In a case of this kind, the rules should be taken together, and a common test applied. If a defendant is entitled to summary judgment because the claimant has no realistic prospect of success, then the statement of claim discloses no reasonable grounds for bringing the claim and should be struck out: see Global Asset Capital Inc v Aabar Block SARL [2017] EWCA Civ 37…”.

Coulson LJ continued at [22] “As to the applicable test itself:

On the latter point I am also mindful of the decision in Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Company 100 Ltd [2007] FSR 63, where similarly the Court determined that it should hesitate about making a final decision without trial, even where there is no obvious conflict of fact at the time of the application, but where there are reasonable grounds for believing a fuller investigation into the facts would add to, or alter, the evidence available to a trial judge and therefore affect the outcome of the case.

It is helpful to record one of the other key principles to be applied on summary judgment, as set out by Lewison J, as he then was, in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15 vii)] “… 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 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”.

Finally, it is important to remember that the evidential burden is on the applicant to establish that there are grounds to believe there is no real prospect of success and no other compelling reason for trial. It is only when the applicant has produced evidence which is credible to support the application, that the respondent becomes subject to the evidential burden of proving the opposite.