QB-2022-002447 - [2025] EWHC 2803 (KB)

There is no dispute as to the applicable principles.  I am required to determine D1’s applications to strike out on the basis that the assumed facts are true (see the White Book and the notes to CPR. 3.4 and for a recent example Tindall v Chief Constable of Thames Valley Police [2022] 4 WLR 104 para 75).

I adopt in the main the way in which the framework was expressed in the Claimants’ skeleton argument namely that a claim can only be struck out under CPR part 3.4(2)(a) if it is bound to fail (Hughes v Colin Richards & Co [2004] EWCA Civ 266; [2004] P.N.L.R. 35, CA and  Civil Procedure (the White Book) 2025, commentary at CPR 3.4.2).    A strike out is not appropriate where the law may properly be said to be developing: novel points of law should be based on actual findings of fact, Husson v Secretary of State for the Home Department[2020] EWCA Civ 329, per Simler LJ at para [ 63] see also in Poole itself per Lord Reed at paras [89]-[90].

It is the Claimants’ submission (disputed by D1) that this case raises a novel point of law.

 As to the summary judgment application, as set out in the notes in the White Book,  for the purposes of CPR r 3.4(2)(a) and strike out,  the applicant is generally bound to accept the accuracy of the facts pleaded, in contrast, under CPR r 24.2, where the court is considering whether a case has a realistic prospect of success it may be required to examine the evidence that is relied upon to prove the claim including  any evidence that can reasonably be expected to be available at trial, but it must not conduct a mini-trial: MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) T. Nonetheless, it is not uncommon for an application  for summary judgment to give rise to a short point of law 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 then it should grasp the nettle.