KB-2024-003652 - [2025] EWHC 1900 (KB)

Nevertheless, as often happens, Mr de Wilde placed greater emphasis on the summary judgment limb of the application, and argued it first. Moreover, although the Claimant advanced no such argument, where an application is made to strike out a statement of case which is, on the face of it, defective, it is sometimes appropriate to permit the statement of case to be amended to cure any apparent defects, rather than to strike it out. For example, if the Claimant’s evidence included facts supporting a case of serious harm to reputation, justice and the overriding objective might be better served by permitting him to amend to transpose those facts into the Particulars of Claim rather than striking out the claim for defamation on the basis that serious harm to reputation is not sufficiently pleaded.

In these circumstances, I shall also consider the evidence and the case for summary judgment in respect of both pleaded causes of action - defamation and malicious falsehood.

In doing that, I have well in mind the often-cited summary of the relevant principles contained in the judgment of Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), with which I am very familiar. I also have regard to the following passages of the judgment of Cockerill J in King v Stiefel [2021] EWHC 1045 (Comm):

“[21] The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that - even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial.

[22] So, when faced with a summary judgment application it is not enough to say, with Mr Micawber, that something may turn up.”