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 words. The judge need not and should not examine carefully at this stage issues which should properly be investigated only at trial. He should not conduct a ‘mini-trial’.
If a claimant has a case which is bound to fail, then it is in his interest to know that that is the position as soon as possible but Lord Woolf also stressed that the case had to be a plain case.
CS Lord Woolf discussed the power to dismiss a claim summarily: ‘It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success . . they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.’ and
‘It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Useful though the power is under Pt 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial . . The proper disposal of an issue under Pt 24 does not involve the judge conducting a mini-trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily.’


Lord Woolf MR


Times 04-Nov-1999, [2001] 1 All ER 91, [2001] CP Rep 16, [2000] PIQR 51, [1999] CPLR 779, [1999] EWCA Civ 3053




Civil Procedure Rules 24.2


England and Wales


CitedTaylor and others v Midland Bank Trust Company Limited CA 21-Jul-1999
Stuart-Smith LJ rationalised the possible conflict between Part 24 and the practice direction to Part 24 in its original form by saying that the correct view of the effect of the practice direction is to be gleaned from the heading to the paragraph . .

Cited by:

CitedParsons Plastics (Research and Development) Ltd v Purac Ltd CA 12-Apr-2002
The claimants were main contractors on a construction project. The respondents were sub-contractors. After difficulties, the sub-contractor was ejected from the site. The issue was as to the jurisdiction of the adjudicator. Was the project, to . .
CitedE D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
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 . .
CitedWilliam Browning, Maureen Browning v Messrs Brachers (A Firm) QBD 15-May-2003
The claimants sought damages for professional negligence, in having failed to pursue a claim for professional negligence against a previous firm of solicitors who had acted for the claimant. . .
CitedEquitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
CitedDowntex v Flatley CA 2-Oct-2003
The claimants sought damages for defamation and breach of contract. The claimants had purchased a business from the defendant, which contract included a clause requiring the defendant to say nothing damaging about the business. The defendant . .
CitedHerbert George Snell and others v Robert Young and Co Limited and others CA 21-Nov-2002
The claimants had sought damages for poisoning from organophosphates used in sheep dipping. Evidence linking the injuries to the use of the chemicals had not been found, and the actions struck out as an abuse of process. The group litigation had . .
CitedParks v Clout CA 10-Jun-2003
The claimant said that the respondent had obtained a grant of letters of administration, and taken a share in the estate, by fraudulently destroying the deceased’s last will. He appealed against his claim being struck out as having no realistic . .
CitedCelador 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 . .
CitedKane v New Forest District Council CA 13-Jun-2001
A pedestrian walked from a footpath into the road and was hit by a car. She sought damages from the highway authority, saying that they had allowed vegetation to grow to an extent to make it impossible to be seen. As a second tier appeal, the . .
CitedRachmaninoff and Others v Sotheby’s and Another QBD 1-Mar-2005
The defendant had offered for sale by auction recently discovered works of Rachmaninoff. The claimants, descendants of the composer asserted ownership through his estate. The defendants refused to identify the seller.
Held: The claim should . .
CitedCarillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
CitedHenshall v General Medical Council and others CA 13-Dec-2005
The claimant had lodged a complaint against a medical practitioner. The preliminary proceedings committee had accepted evidence from the doctor, but had not given the complainant opportunity to see it and comment upon it.
Held: the rules must . .
CitedSutradhar v Natural Environment Research Council HL 5-Jul-2006
Preliminary Report of Risk – No Duty of Care
The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
CitedNigeria 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: . .
CitedBryce 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 . .
CitedPegasus 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.
CitedParker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
CitedShah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .
CitedNolan 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 . .
CitedD Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
CitedShah and Another v HSBC Private Bank (UK) Ltd CA 4-Feb-2010
Money laundering suspicion to be explained
The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused . .
CitedBrown ( A Minor) v Emery QBD 4-Mar-2010
The court considered an application for an interim payment to fund the purchase of suitable accommodation in which the child claimant might spend periods of time with her parents and sibling and ultimately reside on discharge, at a cost of . .
CitedParties 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 . .
CitedKaschke v Gray and Another QBD 29-Mar-2010
The defendant appealed against the refusal of the Master to strike out the claim in defamation in respect of a post by a third party on his unmoderated blog. The claimant said that the article accused her of an historic association with a terrorist . .
CitedMeakin 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. . .
CitedCook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
CitedSmith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
CitedWyatt v Vince SC 11-Mar-2015
Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied . .
CitedDellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
CitedEasyair 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 . .
CitedGuthrie 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 . .
CitedAli v Associated Newspapers Ltd QBD 27-Jan-2010
The claimant sought damages in defamation, saying that a combination of publications identified him.
Held: Eady J briefly discussed the effect of hyperlinks in the context of a dispute about meaning or reference in a defamation case. . .
CitedBhayani 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, . .
CitedCXZ 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 . .
CitedVedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 30 January 2022; Ref: scu.89645