Fraser and others v Oystertec Plc and others: 3 Nov 2009

The court considered the meaning of ‘real’ prospects of success: ‘This does not mean that a party can successfully resist summary judgement by suggesting, like Mr Micawber, that something may turn up to save him, though he does not know what: see per Megarry V-C in Lady Anne Tennant v. Associated Newspapers Group Ltd [1979] FSR 298: per Jacob J in World Wide Fund for Nature v. World Wrestling Federation [2002] FSR 504, 515 (‘There must be some reasonable basis… It is not enough that something might turn up out of the blue’). The court must be able to see that the prospect is real, not fanciful. For example, ‘the hope that something may turn up during the cross-examination of a witness at the trial does not suffice. It is of course different if the admissible material available discloses a reasonable prima facie case which the other party will have to answer at the trial’ (per Lord Hobhouse in the Three Rivers case)’.


Peter Prescott QC


Unreported, 03/11/2009


Civil Procedure Rules 24.2.3


England and Wales


See AlsoFraser and others v Oystertec Plc and others PatC 7-Nov-2003
. .
See AlsoFraser, Wong-Fraser, Davidson Tools Limited, Sankey Product Developments Limited v Oystertec Plc, Davidson, Binney, Easyrad Limited ChD 6-Oct-2004
. .

Cited by:

CitedGray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.430236