Claimant's Summary Judgment and Strike Out Applications - on Foreign Judgment (Collatory Case)

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].

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