The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of proof rests upon the claimant to establish that there are grounds for his belief that the respondent has no real prospect of success whereas, under the latter, the burden rests upon the defendant to satisfy the court that there is good reason why a judgment regularly obtained should be set aside. In this case the facts would satisfy either test whatever the difference. The evidence did not establish that anyone had ever used the search term ‘Mr Spicy’ but rather the defendants had been found by using the term ‘spicy’. The court must disregard prospects of success which are false, fanciful or imaginary. Inclusion of the word ‘real’ means that the claimant must have a case which is better than merely arguable.
Potter LJ said that in evaluating the prospects of success of a claim or defence the judge is not required to abandon her critical faculties: ‘It is certainly the case that under both rules, where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 95 in relation to CPR 24. However, that does not mean that the court has to accept without analysis everything said by a party 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 contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable . .’
Lord Justice Potter Lord Justice Peter Gibson
[2003] EWCA Civ 472, Times 18-Apr-2003, Gazette 19-Jun-2003, [2003] CP Rep 51, [2003] CPLR 384, [2003] CPLR 349, [2003] QB 1556, [2003] 3 WLR 667
Bailii
Civil Procedure Rules 13.3(1)(a) 24.2(a)(ii)
England and Wales
Citing:
Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
Cited – International Finance Corporation v Utexafrica SPRL ComC 9-May-2001
The defendant applied to have set aside judgement entered against him in default of acknowledgment of service.
Held: The authorities make it plain that, in order to satisfy the test for resisting a summary claim for for wrongful repudiation . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Application for leave – ED and F Man Liquid Products Ltd v Patel and Another CA 16-Oct-2002
Application for leave to appeal . .
Cited by:
Cited – Celador Productions Ltd v Melville ChD 21-Oct-2004
The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . .
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Cited – Nigeria v Santolina Investment Corp and others ChD 7-Mar-2007
The federal government sought to recover properties from the defendants which it said were the proceeds of corrupt behaviour by the principal defendant who had been State Governor of a province. The claimant sought summary judgment.
Held: . .
Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Cited – Wilson v Yahoo! UK Ltd and Another ChD 20-Feb-2008
The claimant had carried on business as ‘Mr Spicy’ selling snacks, and had obtained community trade marks for the name. He said that the defendant had allowed the infringement of his rights by allowing sainsbury’s to use the terms in their keywords . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Nolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Cited – Webb v Macdonald and Another ChD 29-Jan-2010
Defendant barrister and solicitors applied to have the claims against them for professional negligence struck out. They had advised on a settlement of a dispute, which settlement the claimant now said was negligently wrong.
Held: The advice . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Cited – Meakin v British Broadcasting Corporation and Others ChD 27-Jul-2010
The claimant alleged that the proposal for a game show submitted by him had been used by the various defendants. He alleged breaches of copyright and of confidence. Application was now made to strike out the claim. . .
Cited – Lockey v East North East Homes Leeds EAT 14-Jun-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Striking out – unfair dismissal and wrongful dismissal.
As to unfair dismissal, since (as the Employment Judge recognised) it was arguable that an . .
Cited – Calland v Financial Conduct Authority CA 13-Mar-2015
The claimant appealed against the striking out of his claim of harassment against the Authority who had contacted him in an intended review of pensions mis-selling. They had contacted him once by letter, once by telephone and once by e-mail.
Cited – Easyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .
Cited – Guthrie v Morel and Others ChD 5-Nov-2015
The will had failed clearly to identify a property in Spain the subject of a bequest.
Held: Summary judgment was given. ‘It seems to me to be clear that the deceased intended by his Will to deal with his entire estate and that he intended the . .
Cited – Siddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .
Cited – Bhayani and Another v Taylor Bracewell Llp IPEC 22-Dec-2016
Distinction between reputation and goodwill
The claimant had practised independently as an employment solicitor. For a period, she was a partner with the defendant firm practising under the name ‘Bhayani Bracewell’. Having departed the firm, she now objected to the continued use of her name, . .
Cited – Tayside Public Transportcompany Ltd (T/A Travel Dundee) v Reilly SCS 30-May-2012
The respondent bus driver had claimed unfair dismissal following an accident. The Employment Tribunal struck out his case as having no reasonable prospect of success, but the case had been re-instated by the EAT.
Held: the power given in the . .
Cited – CXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .
Lists of cited by and citing cases may be incomplete.
Civil Procedure Rules
Leading Case
Updated: 02 November 2021; Ref: scu.180586