The correct approach to the summary judgment/strike out application

In BG Atlantic Inc v Hay Hill Investments Ltd [2026] EWHC 226 (KB) ('BG Atlantic'), Jonathan Moffett KC, sitting as a Deputy High Court Judge, had before him an application by the Claimant for summary judgment and/or to strike out the defence (in a claim based on a foreign judgment; the defences being: (a) fraud and (b) public policy). Under the heading '(1) The correct approach to the summary judgment/strike out application', said, at paragraphs 52 to 56:

'Save for the expected differences in emphasis, the parties were agreed as to the correct approach to an application for summary judgment and an application to strike out a defence.

Under CPR 24.3, the Court may give summary judgment against a defendant on the whole of a claim, if it considers that the defendant has no real prospect of succeeding on the claim, and there is no other compelling reason why the case should be disposed of at trial. Further, under CPR 3.4(2), the Court may strike out a statement of case if it appears to the court (a) that the statement of case discloses no reasonable grounds for defending the claim, or (b) that the statement of case is an abuse of the Court’s process.

The test for summary judgment was helpfully summarised by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), paragraph 15. Adapting that summary to the context of the present case, the correct approach may be summarised as follows.

(1) The court must consider whether the defendant has a “realistic” as opposed to a “fanciful” prospect of success.

(2) A “realistic” defence is one that carries some degree of conviction. This means a defence which is more than merely arguable.

(3) In reaching its conclusion the court must not conduct a “mini-trial”.

(4) This does not mean that the court must take at face value and without analysis everything that a defendant says in its statements before the court. In some cases it may be clear that there is no real substance in the factual assertions made, particularly if contradicted by contemporaneous documents.

(5) 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.

(6) Although a case may turn out at trial not to be 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 an application for 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.

(7) On the other hand, it is not uncommon for an application under CPR 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 simple: if the respondent’s case is bad in law, it will in truth have no real prospect of successfully defending the claim against it. 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.

[Counsel for Claimant] drew my attention to the recent decision of David Railton KC, sitting as a Deputy High Court Judge, in Tui Airways Ltd v Smartlynx Airlines Malta Ltd [2025] EWHC 2098 (Comm), paragraph 6, where the Deputy Judge pithily summarised the central question for the Court on an application for summary judgment as being “whether the defendant has a realistic, as opposed to fanciful, prospect of successfully defending the claim”.

The main difference between an application for summary judgment and an application to strike out is that, on an application to strike out, the pleaded facts should be assumed to be true, and evidence to support claims made in the pleadings is inadmissible (see King v Stiefel [2021] EWHC 1045 (Comm), paragraphs 26-27 perCockerill J). However, it seems to me that, in the context of the present case, this is a distinction that does not make a material difference, because the Claimant’s application does not rely on an argument that there is no realistic prospect of the Defendant making out its pleaded case on the facts.'

As to where the defence includes a defence of fraud, the deputy Judge in BG Atlantic said, at paragraphs 57 and 58:

[Counsel for Claimant] also relied on King v Stiefel as authority for the proposition that the fact that a statement of case alleges fraud is not bar to the grant of summary judgment. In paragraph 24, Cockerill J stated as follows:

“The reality is that while the court will be very cautious about granting summary judgment in fraud cases, it will do so in suitable circumstances, and there are numerous cases of the court doing so. This is particularly the case where there is a point of law; but summary judgment may be granted in a fraud case even on the facts.”

Read in the context of the remainder of that paragraph and the one which follows it, it seems to me that Cockerill J was primarily addressing cases where it is alleged either that the allegation of fraud is fanciful or that it has not been pleaded expressly. Nevertheless, I accept that the fact that the defence alleges fraud and dishonesty on the part of the Claimant is not in itself a bar to the grant of summary judgment.'

A few additional points:

(1) In Tui Airways Ltd v Smartlynx Airlines Malta Ltd [2025] EWHC 2098, David Railton KC, sitting as a Deputy High Court Judge, said, at paragraph 6:

'The test for summary judgment is well known, and is not in dispute. The principles have recently been conveniently summarised by Nicklin J in Amersi v Leslie [2023] EWHC 1368 (KB) at [142]. The central question is whether the defendant has a realistic, as opposed to fanciful, prospect of successfully defending the claim.'

(2) In Amersi v Leslie [2023] EWHC 1368 (KB), Nicklin J said, at paragraph 142:

'The, now familiar, principles governing summary judgment were summarised in Easyair Ltd -v- Opal Telecom Ltd [2009] EWHC 339 (Ch) [15] per Lewison J (and approved by the Court of Appeal in AC Ward & Sons Ltd -v- Catlin (Five) Ltd [2009] EWCA Civ 1098). Drawing upon other relevant authorities the following can be stated:

(1) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain -v- Hillman [2001] 1 All ER 91. The criterion is not one of probability; it is absence of reality: Three Rivers DC -v- Bank of England (No.3) [2003] 2 AC 1 [158] per Lord Hobhouse.

(2) 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 [8]

(3) In reaching its conclusion the court must not conduct a "mini-trial": Swain -v- Hillman. 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 [10]; Optaglio -v- Tethal [2015] EWCA Civ 1002 [31] per Floyd LJ.

(4) 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; Doncaster Pharmaceuticals Group Ltd -v- Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63.

(5) Nevertheless, to satisfy the requirement that further evidence "can reasonably be expected" to be available at trial, there needs to be some reason for expecting that evidence in support of the relevant case will, or at least reasonably might, be available at trial. It is not enough simply to argue that the case should be allowed to go to trial because something may "turn up". A party resisting an application for summary judgment must put forward sufficient evidence to satisfy the court that s/he has a real prospect of succeeding at trial (especially if that evidence is, or can be expected to be, already within his/her possession). If the party wishes to rely on the likelihood that further evidence will be available at that stage, s/he must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court. The court may then be able to see that there is some substance in the point and that the party in question is not simply playing for time in the hope that something will turn up: ICI Chemicals & Polymers Ltd -v- TTE Training Ltd [2007] EWCA Civ 725 [14] per Moore-Bick LJ; Korea National Insurance Corporation -v- Allianz Global Corporate & Speciality AG [2008] Lloyd's Rep IR 413 [14] per Moore-Bick LJ; and Ashraf -v- Lester Dominic Solicitors & Ors [2023] EWCA Civ 4 [40] per Nugee LJ. Fundamentally, the question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success: Okpabi -v- Royal Dutch Shell Plc [2021] 1 WLR 1294 [128] per Lord Hamblen.

(6) Lord Briggs explained the nature of the dilemma in Lungowe -v- Vedanta Resources plc [2020] AC 1045 [45]:

"… On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue…"

(7) The Court may, after taking into account the possibility of further evidence being available at trial, and without conducting a 'mini-trial', still evaluate the evidence before it and, in an appropriate case, conclude that it should " draw a line " and bring an end to the action: King -v- Stiefel [2021] EWHC 1045 (Comm) [21] per Cockerill J.'[1].

(3) In AC Ward & Sons Ltd -v- Catlin (Five) Ltd [2009] EWCA Civ 1098, an appeal against the granting of summary judgment in favour of the defendant, Etherton LJ (with whom Wilson LJ and Sullivan LJ agreed), said, at paragraph 24:

'There is no dispute as to the proper approach to be taken by the court on an application for summary judgment, and that the relevant principles were correctly identified by the Judge. They are conveniently summarised by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at para. [15].'

(4) in Imaging Centre Assets Ltd v Canon Medical Systems Ltd [2026] EWHC 311 (Ch), Master Pester, under the heading 'Legal Test', said, at paragraphs 7 to 9:

'CPR 24.3 provides:

“24.3. Grounds for summary judgment The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if-

(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

Authoritative guidance as to the principles applicable to summary judgment applications were given by Lewison J (as he then was) in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339, at [15]. These have been cited on many occasions and approved by the Court of Appeal, as follows:

(1) 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;

(2) 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];

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

(4) 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];

(5) 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;

(6) 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;

(7) 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.

In the context of this case, the sixth principal is particularly relevant. It may be wrong to grant summary judgment where there are reasonable grounds for believing that a fuller investigation into the facts of the case would add to or at least alter the evidence available to the trial judge, and thus affect the outcome.'

(5) in Spurgeon v Capita Plc [2026] EWHC 241 (KB), Master Dagnall heard an application for strike out or reverse summary judgment. Under the heading 'Civil Procedure Rule 3.4(2)', he noted, at paragraph 5:

'The Applications are formally made under Civil Procedure Rule (“CPR”) 3.4(2)(b). CPR3.4(1) and (2) provide that: “(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;

(c) that there has been a failure to comply with a rule, practice direction or court order; or

(d)…”'

Later, in respect to reverse summary judgment, he noted, at paragraph 47:

'It is true that the court is not bound to accept as credible everything said by the respondent to a summary judgment application. The court may conclude that the respondent has no real prospect of establishing its factual case at trial. The paradigm case in which it may do so is where the respondent's evidence is contradicted by a contemporaneous document the authenticity is not in doubt.'

Strike out can be basis on there is an abuse of process. As to the consequences of there being an Abuse of Process, Master Dagnall, said, at paragraphs 127:

'[counsel for the defendant/applicant] reminded me that CPR3.4(2)(b) gives the Court a power to strike-out where there is such an abuse. With regard to the question of whether that power should be exercised in any particular case of abuse, she took me to Tinkler v Ferguson [2021] 4 WLR 27 at paragraphs 29-35:

“28. The court has the inherent power to prevent misuse of its procedure where the process would be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people: Hunter v. Chief Constable of the West Midlands Police [1982] AC 529 [1982] AC 529 Lord Diplock at 536.

29. A review of the power to control abuse of process was given by Simon LJ in Michael Wilson & Partners Ltd v Sinclair [2017] 1 WLR 2646 at [39] to [48], ending with this summary:

"(1) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated; see Lord Diplock in Hunter's case [1982] AC 529, Lord Hoffmann in the Arthur J S Hall case [2002] 1 AC 615 and Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1. These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other, see again Lord Diplock in Hunter's case. Both or either interest may be engaged.

(2) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse: see Bragg v Oceanus [1982] 2 Lloyd's Rep 132; and the court's power is only used where justice and public policy demand it, see Lord Hoffmann in the Arthur J S Hall case.

(3) To determine whether proceedings are abusive the court must engage in a close merits based analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court's process, see Lord Bingham in Johnson v Gore Wood & Co and Buxton LJ in Laing v Taylor Walton [2008] PNLR 11.

(4) In carrying out this analysis, it will be necessary to have in mind that: (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the case within the spirit of the rules, see Lord Hoffmann in the Arthur J S Hall case; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in the earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated, see Sir Andrew Morritt V-C in the Bairstow case [2004] Ch 1 or, as Lord Hobhouse put it in the Arthur J S Hall case, if there is an element of vexation in the use of litigation for an improper purpose.

(5) It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris.

To which one further point may be added.

(6) An appeal against a decision to strike out on the grounds of abuse, described by Lord Sumption JSC in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160, para 17 as the application of a procedural rule against abusive proceedings, is a challenge to the judgment of the court below and not to the exercise of a discretion. Nevertheless, in reviewing the decision the Court of Appeal will give considerable weight to the views of the judge, see Buxton LJ in the Laing v Taylor Walton case, para 13."

30. The last point was also made in Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748, a case best known for the guidance given by Thomas LJ that a party to complex commercial multi-party litigation who wishes to reserve the right to pursue other proceedings must make that clear to the court, so that the court can express a view about the proper use of its resources and identify whether a way could be found to determine the reserved issues in the current proceedings.

31. The circumstances in which abuse of process can arise are very varied and are not limited to fixed categories: Hunter at 536. Examples can be found in: vexatious proceedings amounting to harassment; attempts to re-litigate issues that were raised in previous proceedings; attempts to litigate issues that should have been raised in previous proceedings (Henderson v Henderson (1843) 3 Hare 100); collateral attacks upon earlier decisions (attacks made in new proceedings rather than by way of appeal in the earlier proceedings); pointless and wasteful litigation (Jameel).

32. Nor is there any hard and fast rule to determine whether abuse is found or not; the process is not dogmatic, formulaic or mechanical, but requires the court to weigh the overall balance of justice: Johnson at 31, 32 and 34. Indeed, the overriding objective of the procedural rules is to enable the court to deal with cases justly, including when it exercises the power under CPR 3.4. Where there is abuse, the court has a duty, not a discretion, to prevent it: Hunter at 536.

33. Jameel confirms that the court has the power to strike out a claim as abusive where it discloses no real or substantial tort and where, colloquially, the game would not be worth the candle. This calls for an assessment of the value (in the widest sense) to the claimant of what is properly at stake and of the likely cost (in the widest sense) of the litigation. The jurisdiction is useful where a claim is obviously pointless or wasteful: Vidal-Hall v Google Inc. [2016] QB 1003. Such cases are to be distinguished from valid claims of small value or cases where vindication is of importance to the claimant and the court should only conclude that continued litigation would be abusive where a way cannot be found to adjudicate the claim proportionately: Ames v Spamhaus Project Ltd. [2015] 1 WLR 3409 [33]-[36] per Warby J citing Sullivan v Bristol Film Studios Ltd. [2012] EMLR 27 [29] to [32] per Lewison LJ.

34. For completeness, I would note that following the handing down of our draft judgments in the present case, two very recent decisions of this court concerning abuse of process were coincidentally published: Allsop v Banner Jones [2021] EWCA Civ 7 and Pricewaterhousecoopers LLP v BTI 2014 LLC [2021] EWCA Civ 9...

35. In summary, the power to strike out for abuse of process is a flexible power unconfined by narrow rules. It exists to uphold the private interest in finality of litigation and the public interest in the proper administration of justice, and can be deployed for either or both purposes. It is a serious thing to strike out a claim and the power must be used with care with a view to achieving substantial justice in a case where the court considers that its processes are being misused. It will be a rare case where the relitigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse, but where the court finds such a situation abusive, it must act.'

(6) In Garden House Software Ltd v Marsh [2026] EWHC 314 (Ch), HHJ Cadwallader (sitting as a Judge of the High Court) heard an application '...for reverse summary judgment against the claimant on the ground that the claim has no real prospect of success, alternatively to strike out the claim on the grounds that it discloses no reasonable grounds for bringing it.'

Under the heading 'Summary judgment/ strike out' and 'The principles', the Judge said, at paragraph 4:

'In considering the application I have regard in particular to the provisions of CPR Part 3.4 and 24 and the principles in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] and the dicta in Jukic v BCC [2025] EWHC 221 (Ch) ... at [97]-[100].'

(7) In Jukic v BCC [2025] EWHC 221 (Ch), Thompsell J, under the heading 'The Legal Test for Summary Judgment' said, at paragraphs 95 to 100:

'Pursuant to CPR rule 24.2, a court may give summary judgment on the whole of a claim or on a particular issue if it considers that (i) the claimant has no real prospect of succeeding on the claim or issue; and (ii) there is no other compelling reason why the case or issue should be disposed of at a trial.

Claims for striking out and for summary judgment are typically brought together as claims in the alternative. Where an application is being made for a summary judgment it is common for the parties and the judge to make reference to the principles summarised by Lewison J (as he then was) in Easyair Limited (trading as Openair) v Opal Telecom Limited [2009] EWHC 339 (Ch) [at 15]. These principles have been followed on many occasions and were specifically approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098 (at [24]). As Ms Jukic in her application has demonstrated some misunderstanding of the test, I will set out a summary of the principles involved:

i) The court must consider whether the respondent to the application has a "realistic" as opposed to a "fanciful" prospect of success i.e. one that carries some degree of conviction - a claim that is more than merely arguable.

ii) The court must not conduct a "mini-trial". This does not mean that the court must take at face value and without analysis everything that a respondent to the application says in his statements before the court.

iii) The court must take into account not only the evidence actually placed before it upon the application, but also the evidence that can be reasonably expected to be available at trial.

iv) Although a case may turn out at trial not to be 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.

v) On the other hand, it is not uncommon for an application under CPR 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. If the respondent's case is bad in law, he or she will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be.

vi) The court should be especially cautious of giving summary judgment in an area of developing jurisprudence, because in such areas decisions on novel points of law should be decided on real rather than assumed facts.

As summary judgment and striking out applications overlap, are routinely made together, and routinely turn on the same alleged facts, courts will often not seek to point out differences between these two heads of claim – see for example The High Commissioner for Pakistan in the United Kingdom v National Westminster Bank Plc and Others [2016] EWHC 1465 (Ch); [2016] 6 WLUK 486 where Henderson J noted at [17], apparently with approval, that:

"nobody submitted to me that there is any material difference between the test of "no real prospect" of success in Part 24 and "discloses no reasonable grounds for bringing or defending the claim" in rule 3.4(2)(a)"

(although the learned judge did go on to consider the important distinction that the power to strike out under CPR rule 3.4 also extends to cases of abuse of process, as set out in ground (b) thereof).

However, there are distinctions between the two tests, as was pointed out by Master Marsh (sitting in retirement) in MF TEL SARL v Visa Europe Limited [[2023] EWHC 1336 (Ch)] he pointed out at [34(3)] that:

"The test for striking out as it has been interpreted leaves no scope for the statement of case showing a claim that has some prospect of success. The claim must be unwinnable or bound to fail. Under CPR rule 24.2 it is not good enough for a point to be merely arguable, it must have a real prospect of success. An application to strike out might fail whereas the same application for summary judgment might succeed."

A further difference (noted at [10(1)] in the same judgment) is that for the purposes of the application under CPR rule 3.4(2)(a) the court will usually proceed on the basis that the pleaded facts are true, whereas evidence, and in particular, witness statements, may have a greater bearing on an application under CPR rule 24.2 as on such applications the court may be required to exercise a judgment about the quality of the evidence.

The evidential burden is on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other compelling reason for a trial (see para.2(3) of Practice Direction 24 and para 24.3.3 of the White Book, page 674). That standard of proof is high. If credible evidence is adduced in support of the application, then the respondent assumes an evidential burden of proving some real prospect of success or some other compelling reason for a trial.'

(8) in Snowball v Chief Constable of Thames Valley [2026] EWHC 210 (KB) ('Snowball'), Master Stevens said, under the heading 'The Law on Strike-Out Applications/Summary Judgment', at paragraphs 12 to 17:

'12. Pursuant to CPR 3.4 (2) the Court may strike out a statement of case if it appears to the Court:

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to affect the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order.

13. The notes to the White Book make it plain at 3.4.2 that a claim should not be struck out unless the Court is certain it is bound to fail. In such unwinnable cases the continuance of the proceedings is without any possible benefit to the respondent and would waste costs on both sides (Harris v Bolt Burdon [2000] C.P. Rep.70. Similar guidance was provided by Potter LJ in Wragg v Partco Ltd [2002] EWCA Civ 594. Within the Practice Direction there are examples of cases where the Court may conclude that the Particulars disclose no reasonable grounds because they set out no facts indicating what the claim is about or they are incoherent, alternatively despite a coherent set of facts, those facts even if true do not disclose a legally recognisable claim (Price Meats Ltd v Barclays Bank Plc [2000] 2 All E. R. (Comm) 346 Ch).

14. As to what is an abuse of process, at 3.4.3 in the White Book the notes record that there is no clear definition, and the scope is wide, but if any abuse can be addressed by less draconian methods than a strike-out, then the other option should be taken.

15. When considering strike-out on grounds of abuse, a two-stage test should be applied as set out in Asturion Foundation v Alibrahim [2020] EWCA Civ 32 at [ 63]: “First the court has to determine whether the claimant’s conduct was an abuse of process. Secondly, if it was, the court has to exercise its discretion as to whether or not to strike out the claim.. It is at that second stage that the usual balancing exercise, and in particular considerations of proportionality, becomes relevant.”

16. Pursuant to CPR 24.2 the Court may give summary judgment on the whole of a claim or a particular issue if it considers that:

(i) The claimant has no real prospect of succeeding on the claim or issue; …and

(ii) There is no other compelling reason why the case or issue should be disposed of at trial

17. Summary judgment applications are useful where there is a short point of law or construction which can adequately be addressed in argument without a fuller investigation into the facts, because there are no reasonable grounds for believing they would add to, or alter the evidence available to a trial judge, and thereby affect the outcome of the case.'

In Snowball, Master Stevens, under the heading 'Overlap between Summary Judgment and Strike-Out Applications & Relevant Case Law' then said, at paragraphs 18 to 23:

'18. 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”.

19. 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…”.

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

(a) the court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 AER 91. A realistic claim is one that carries some degree of conviction: ED& F Man Liquid Products v Patel [2003] EWCA Civ 472 . But that should not be carried too far: in essence the court is determining whether or not the claim is “bound to fail””.: Altimo Holdings v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 at [80] and [82].

(b) the court must not conduct a mini-trial: Three Rivers District Council v Governor of the Bank of England (No 3) [2003] 2 AC 1, in particular paragraph 95. Although the Court should not automatically accept what the claimant says at face value, it will ordinarily do so unless its factual assertions are demonstrably unsupportable: ED & F Man Liquid Products Ltd v Patel; Okpabi and others v Royal Dutch Shell Plc and another [2021] UKSC 3, at paragraph 110. The Court should also allow for the possibility that further facts may emerge on discovery or at trial: Royal Brompton NHS Trust v Hammond (No 5) [2001] EWCA Civ 550 ; Sutradhar v Natural Environmental Research Council [2006] 4 All ER 490 at [6]; and Okpabi at paragraphs 127-128.”

21. 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.

22. 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”.

23. 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.'

Collatory Case Series

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