Summary Judgment and Strike-Out: Resolving Claims Without a Full Trial

Summary Judgment and Strike-Out: Resolving Claims Without a Full Trial

Introduction

Civil litigation in England and Wales does not always have to proceed to a full trial. Although a trial is the traditional method through which courts resolve disputed claims, the Civil Procedure Rules provide mechanisms that allow proceedings, or particular parts of them, to be determined at an earlier stage.

Two particularly important mechanisms are summary judgment and strike-out. Both allow the court to intervene before a full trial, but they serve different purposes and operate under different legal tests.

Summary judgment enables the court to decide a claim or an issue without a trial where a party has no real prospect of succeeding and there is no other compelling reason for the matter to proceed to trial. Its purpose is to prevent parties from being subjected to unnecessary litigation where the essential legal or factual position can already be determined.

Strike-out, on the other hand, allows the court to remove a statement of case, or part of one, where it falls within specified procedural or substantive grounds. These may include an absence of reasonable grounds for bringing or defending a claim, an abuse of the court’s process, or a failure to comply with procedural requirements or court orders.

Although the two procedures may produce similar practical results, they should not be confused. Summary judgment examines whether a party has a realistic prospect of succeeding and whether a trial is necessary. Strike-out examines whether a statement of case is legally or procedurally defective to such an extent that it should not remain before the court.

These procedures are important instruments of judicial case management. They protect court resources, reduce unnecessary legal costs, prevent unmeritorious litigation and help ensure that judicial time is devoted to disputes requiring a full examination of the evidence.

However, they must be applied carefully. A court should not dispose of a genuinely arguable claim merely because it considers one party’s case less persuasive at an early stage. The distinction between a weak case and a case with no real prospect of success is therefore central to summary judgment.

The principal procedural provisions are found in CPR Part 24, governing summary judgment, and CPR 3.4, governing the court’s power to strike out a statement of case. Their application is also influenced by the overriding objective in CPR 1.1 and the court’s wider case management powers.

Understanding these mechanisms is essential for appreciating how modern civil litigation balances access to justice with procedural efficiency.

1. The Legal Framework

Summary judgment and strike-out are governed by separate provisions of the Civil Procedure Rules.

1.1 Summary judgment: CPR Part 24

CPR Part 24 provides the procedure through which the court may give judgment without a trial where the relevant conditions are satisfied.

The principal provision is CPR 24.3, which establishes the substantive test for summary judgment.

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue where:

• The party has no real prospect of succeeding on the claim, defence or issue; and
• There is no other compelling reason why the case or issue should be disposed of at a trial.

The procedure may be initiated by an application from one of the parties or, in appropriate circumstances, by the court on its own initiative.

Summary judgment is not confined to claims that are obviously dishonest or legally impossible. It may also be appropriate where the available evidence establishes that a party’s position cannot realistically succeed, even though the claim or defence is formally valid.

The official rules can be consulted here: CPR Part 24 – Summary Judgment.

1.2 Strike-out: CPR 3.4

CPR 3.4 establishes the court’s power to strike out a statement of case.

Under CPR 3.4(2), the court may strike out a statement of case where:

• It discloses no reasonable grounds for bringing or defending the claim.
• It constitutes an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.
• There has been a failure to comply with a rule, practice direction or court order.

The power is available in relation to a whole statement of case or a particular part of it.

Unlike summary judgment, strike-out does not necessarily require the court to assess whether the party has a real prospect of succeeding. Its focus is the legal or procedural acceptability of the statement of case.

The official provision is available here: CPR Part 3 – The Court’s Case Management Powers.

1.3 The overriding objective

Both procedures must be understood in the context of CPR 1.1.

The overriding objective requires the court to deal with cases justly and at proportionate cost. This includes ensuring that cases are dealt with fairly, expeditiously and efficiently, allocating an appropriate share of court resources and enforcing compliance with procedural rules.

Summary judgment and strike-out support these objectives by allowing the court to eliminate claims or procedural defects that do not justify the expense of a full trial.

Nevertheless, procedural efficiency cannot be pursued at the expense of a fair hearing. The court must distinguish between cases that genuinely require trial and those that can properly be determined without one.

2. The Meaning and Purpose of Summary Judgment

Summary judgment is a procedure through which the court determines a claim or a particular issue without requiring the parties to proceed to a full trial.

Its purpose is to prevent unnecessary litigation where the available evidence and legal arguments demonstrate that one party has no real prospect of succeeding.

The procedure is based on the recognition that not every dispute requires a complete trial. Some claims may be legally unsustainable, while others may depend on factual allegations that cannot realistically be established.

For example, a claimant may bring proceedings to recover a contractual debt supported by a signed agreement, invoices and correspondence acknowledging the outstanding amount. The defendant may respond with a bare denial without identifying any credible defence or evidence suggesting that the debt has been paid.

If the defendant has no real prospect of successfully defending the claim and there is no compelling reason for a trial, the claimant may seek summary judgment.

The procedure is not designed to punish a party for bringing a weak claim or defending proceedings unsuccessfully. Rather, it provides an early determination where a full trial would serve no useful purpose.

Importantly, summary judgment may be granted in favour of either claimant or defendant.

A claimant may apply where the defendant has no real prospect of successfully defending the claim. A defendant may apply where the claimant has no real prospect of succeeding.

The court may also determine only a particular issue rather than dispose of the entire proceedings.

This flexibility is valuable in complex litigation where certain questions can be resolved without a trial even though other matters remain disputed.

3. The Legal Test: No Real Prospect of Success

The central requirement for summary judgment is established by CPR 24.3.

The court must be satisfied that the relevant party has no real prospect of succeeding on the claim, defence or issue and that there is no other compelling reason why the matter should be disposed of at a trial.

The expression real prospect is fundamental.

It does not mean that a party must demonstrate that success is more likely than not. Summary judgment is not an early determination of which party is most likely to win after a full examination of the evidence.

Equally, a merely theoretical or fanciful possibility of success is insufficient.

The court must distinguish between a case that has a genuine prospect of success and one that is unsupported by a realistic legal or factual foundation.

3.1 Swain v Hillman

One of the leading authorities concerning summary judgment is Swain v Hillman [2001] 1 All ER 91.

The Court of Appeal emphasised that the summary judgment procedure should not become a mini-trial.

The court must consider whether the party has a realistic prospect of success rather than simply examine whether its case is likely to succeed at trial.

This distinction is important because civil proceedings may involve factual disputes that cannot properly be resolved through an examination of written evidence alone.

A party should not lose a genuine claim merely because its case appears less persuasive at the preliminary stage.

3.2 Easyair Ltd v Opal Telecom Ltd

Another important authority is Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch).

The court formulated several principles governing summary judgment applications.

These include the following:

• The court must consider whether the claim has a realistic rather than fanciful prospect of success.
• A realistic claim must possess some degree of conviction and be more than merely arguable.
• The court must avoid conducting a mini-trial.
• The court is not required to accept every factual assertion at face value.
• Where appropriate, the court may examine the available evidence and consider whether the alleged facts have any real substance.
• A party should not be permitted to resist summary judgment through vague suggestions that something may emerge during disclosure or at trial.
• Where a short and sufficiently clear point of law can properly be determined, the court may decide it rather than require an unnecessary trial.

These principles were approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098.

A useful judicial explanation of the approach can be found in this High Court judgment discussing the Easyair principles.

3.3 The distinction between a weak case and a hopeless case

The distinction between a weak claim and one with no real prospect of success is essential.

A claim may contain weaknesses, inconsistencies or evidential difficulties without necessarily being suitable for summary judgment.

For example, a claimant bringing a professional negligence action may not yet possess all the expert evidence required to establish the precise standard of care. However, the available documents may provide a credible basis for alleging negligence and further evidence may reasonably be expected through the litigation process.

The court should consider whether the claim has a realistic evidential foundation rather than demand that the claimant prove the entire case at the summary judgment stage.

Conversely, where the claimant’s own documents conclusively contradict the essential allegations, or where the legal basis of the claim is unsustainable, summary judgment may be appropriate.

The procedure therefore requires judicial evaluation without prematurely determining matters that properly belong at trial.

4. The Requirement That There Be No Other Compelling Reason for a Trial

Even where a party has no real prospect of succeeding, summary judgment will not necessarily follow.

CPR 24.3 contains a second requirement: there must be no other compelling reason why the case or issue should be disposed of at a trial.

This condition protects the fairness of the proceedings.

There may be circumstances in which the court considers that a trial remains necessary despite the apparent weakness of one party’s position.

Examples may include:

Complex factual disputes. The resolution of important factual questions may require oral testimony, cross-examination or a more extensive examination of the evidence.

Credibility issues. Where the outcome depends substantially on whether a witness is telling the truth, the court may consider that a trial is necessary.

Incomplete evidence. Relevant documents or expert reports may not yet be available, making an early determination inappropriate.

Interrelated issues. A particular issue may be difficult to determine fairly without examining other questions that form part of the same dispute.

Important legal questions. A case may involve a developing or unsettled area of law that requires fuller consideration.

The requirement is not satisfied merely because a party would prefer to have its case heard at trial. There must be a compelling reason connected with the proper determination of the dispute.

The court therefore considers both the prospects of success and the procedural circumstances in which the application is made.

5. Who Can Apply for Summary Judgment?

CPR 24.2 identifies the types of proceedings in which summary judgment is available.

A claimant may apply for summary judgment against a defendant in any type of proceedings.

A defendant may apply for summary judgment against a claimant in any type of proceedings, subject to a specific exception concerning certain residential possession proceedings.

The exception concerns proceedings for possession of residential premises against a mortgagor, tenant or contract-holder, or certain former tenants or contract-holders holding over with protected occupancy.

This restriction reflects the particular protections applicable to residential occupation and possession.

The procedure can also be used in relation to counterclaims and other additional claims, subject to the applicable rules.

A claimant may seek judgment on the entire claim, while a defendant may seek judgment dismissing the entire claim or resolving a particular issue in its favour.

The possibility of partial summary judgment is especially important in commercial litigation.

For example, a dispute may involve three separate contractual obligations. The defendant may have no realistic defence to the allegation concerning the first obligation but may have genuine disputes concerning the other two.

The court may determine the first issue summarily while allowing the remaining matters to proceed.

This prevents the entire dispute from being delayed merely because some issues require trial.

6. When Can an Application for Summary Judgment Be Made?

The timing of summary judgment applications is regulated by CPR 24.4.

As a general rule, a claimant cannot apply for summary judgment against a defendant until that defendant has filed an acknowledgment of service or a defence, unless the court gives permission or another rule or practice direction provides otherwise.

There is a specific exception for certain property-related claims.

In proceedings concerning specific performance or rescission of agreements for the sale, purchase, exchange, mortgage or charge of property, or the grant or assignment of a lease or tenancy, the claimant may apply after service of the claim form.

The same provision applies to certain claims for the forfeiture or return of deposits made under such agreements.

The defendant is not required to file a defence before the summary judgment hearing merely because an application has been made before the defence is filed.

Where a summary judgment hearing is fixed, the respondent must generally receive at least 14 days’ notice of the hearing and of the issues the court proposes to determine.

These requirements ensure that the respondent has a reasonable opportunity to prepare its opposition.

The timing of an application is strategically important. An application made too early may encounter difficulties because the relevant evidence has not yet been assembled. An application made unnecessarily late may increase costs and undermine the procedural benefits of early determination.

7. The Procedure for Applying for Summary Judgment

An application for summary judgment is made under CPR Part 24, together with the general application provisions in Part 23.

The applicant must prepare an application notice identifying the order sought and the reasons why summary judgment is appropriate.

CPR 24.5 requires the application notice to:

• State that the application is for summary judgment.
• Identify concisely the points of law or documents relied upon.
• Set out or attach the written evidence supporting the application.
• State that the applicant believes the respondent has no real prospect of succeeding on the relevant claim, defence or issue.
• State that the applicant knows of no reason why the matter should await trial.
• Draw attention to the respondent’s right to rely on evidence opposing the application.

The application should be supported by appropriate evidence, usually in the form of witness statements and relevant documentary material.

The applicant must identify the essential weakness in the opposing case and explain why a trial would not be justified.

A general assertion that the opponent’s case is weak will not necessarily be sufficient.

The evidence should address the relevant factual and legal issues directly.

7.1 Evidence filed by the respondent

The respondent has an opportunity to oppose the application.

Under CPR 24.5, written evidence relied upon by the respondent must generally be filed and served at least seven days before the hearing.

The applicant may then file and serve evidence in reply at least three days before the hearing.

These time limits are subject to the specific provisions of the rule and any applicable court directions.

The respondent should explain why its case has a realistic prospect of success or why another compelling reason requires a trial.

It may rely on documentary evidence, witness statements, expert material or legal arguments, depending on the nature of the dispute.

7.2 The hearing

At the hearing, the court examines the application and the evidence presented by both parties.

The judge considers whether the relevant party has a real prospect of succeeding and whether a trial is nevertheless necessary.

The court must avoid conducting a full trial under the guise of a summary judgment hearing.

However, it is not required to ignore obvious evidential weaknesses or accept unsupported assertions.

Where the legal position is clear and the available material is sufficient, the court may determine the issue without further proceedings.

7.3 The court’s powers

Under CPR 24.6, the court may give directions concerning the filing and service of a defence, issue further case management directions or make its order subject to conditions under CPR 3.1(3).

The court may therefore tailor the outcome to the particular circumstances of the proceedings.

It is not always necessary to choose between immediate judgment and allowing the entire case to continue unchanged.

The court may impose conditions designed to ensure that the proceedings continue fairly and efficiently.

8. The Meaning and Purpose of Strike-Out

Strike-out is a separate procedural mechanism governed by CPR 3.4.

It allows the court to remove a statement of case, or part of one, where specified legal or procedural grounds exist.

A statement of case includes documents such as the claim form, particulars of claim, defence, reply and other statements setting out the parties’ respective positions.

Strike-out may be used where a claim is legally defective, where proceedings constitute an abuse of the court’s process or where a party has failed to comply with procedural requirements.

The procedure serves several purposes.

First, it prevents the court from being required to determine claims that do not disclose a legally recognisable basis for relief.

Second, it protects the judicial process against abusive or oppressive litigation.

Third, it enables the court to enforce procedural discipline and ensure that parties comply with rules and court orders.

Unlike summary judgment, strike-out may be based on defects that are apparent from the statement of case itself, without requiring an extensive assessment of the evidence.

However, strike-out is a serious measure. The court must consider whether the defect is sufficiently fundamental to justify removing the statement of case or whether it can be corrected through amendment or another procedural order.

9. The Three Principal Grounds for Strike-Out

CPR 3.4(2) establishes three principal grounds for striking out a statement of case, together with an additional statutory ground concerning certain strategic litigation against public participation.

9.1 No reasonable grounds for bringing or defending the claim

Under CPR 3.4(2)(a), the court may strike out a statement of case that discloses no reasonable grounds for bringing or defending the claim.

The focus is on whether the pleaded case, even if its factual allegations are assumed to be true, establishes a legally recognisable basis for the claim or defence.

Practice Direction 3A provides examples of statements of case that may fall within this category.

These include:

• A claim that provides no meaningful explanation of its factual basis.
• A statement of case that is incoherent or unintelligible.
• Allegations that, even if accepted as true, do not establish a legally recognised cause of action.
• A defence that consists merely of a bare denial without a coherent factual or legal basis.
• A defence that, even if its allegations are true, does not provide a legally sustainable answer to the claim.

Consider a claimant who issues proceedings alleging that a defendant owes money but provides no explanation of the transaction, agreement or legal obligation giving rise to the alleged debt.

The court may consider whether the particulars of claim disclose any reasonable grounds for bringing the action.

Similarly, a defendant may file a defence that simply states that the claim is denied without identifying any coherent response to the allegations.

A defective statement of case may be struck out where the deficiencies satisfy the applicable test.

However, courts generally distinguish between a case that is badly drafted and one that has no reasonable legal foundation.

Where the problem is a lack of clarity rather than the absence of a viable claim, an order requiring clarification or amendment may be more appropriate.

9.2 Abuse of the court’s process

CPR 3.4(2)(b) permits strike-out where a statement of case constitutes an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.

The concept of abuse is broad and depends on the circumstances.

It may include proceedings that are vexatious, oppressive, brought for an improper purpose or designed to misuse judicial procedures.

Examples may include:

• Repeated litigation concerning matters that have already been conclusively determined.
• Proceedings brought primarily to harass or intimidate another person.
• Claims that misuse court procedures for an improper collateral purpose.
• Deliberate attempts to obstruct the fair and efficient administration of justice.
• Litigation that improperly seeks to relitigate matters that should no longer be open to challenge.

The court must consider the nature of the conduct and its effect on the administration of justice.

Not every unsuccessful or unreasonable claim constitutes an abuse of process.

A party may bring a weak or mistaken claim without necessarily acting abusively.

The distinction is important because strike-out under this ground protects the integrity of the judicial process rather than simply providing a mechanism for dismissing claims that appear unlikely to succeed.

9.3 Failure to comply with a rule, practice direction or court order

The third ground, under CPR 3.4(2)(c), concerns procedural non-compliance.

Civil litigation is governed by procedural obligations designed to ensure that proceedings progress in an orderly and fair manner.

Parties may be required to file documents by specified dates, provide information, comply with disclosure obligations, pay fees or undertake particular procedural steps.

Where a party fails to comply with a relevant rule, practice direction or court order, the court may consider striking out the relevant statement of case.

For example, a claimant may repeatedly fail to provide particulars required by the court despite being given an opportunity to correct the deficiencies.

A defendant may fail to comply with an order requiring the filing of an amended defence within a specified period.

In serious circumstances, strike-out may be justified.

However, procedural non-compliance does not invariably result in strike-out.

The court must consider the circumstances, the seriousness of the failure, its consequences for the proceedings and whether a less severe measure would be sufficient.

The relationship between strike-out and relief from sanctions under CPR 3.9 is particularly important.

A party seeking relief from a sanction must satisfy the relevant legal requirements, including the established considerations concerning the seriousness and significance of the breach, the reasons for it and all the circumstances of the case.

Strike-out should not be treated as an automatic consequence of every procedural mistake.

9.4 Strategic litigation against public participation (SLAPP claims)

An additional ground was introduced into CPR 3.4(2) following the Economic Crime and Corporate Transparency Act 2023.

Under CPR 3.4(2)(d), the court may strike out a claimant’s statement of case where:

• The claim is strategic litigation against public participation, falling within the statutory definition of a SLAPP claim under section 195 of the Economic Crime and Corporate Transparency Act 2023; and
• The claimant has failed to show that it is more likely than not that the claim would succeed at trial.

This provision addresses a particular form of litigation in which legal proceedings are allegedly used to intimidate, silence or financially exhaust individuals or organisations participating in public-interest discussions.

The statutory framework is particularly relevant to claims involving the disclosure or publication of information concerning economic crime and related matters.

The provision is not a general licence to strike out every defamation claim involving a public figure or commercial organisation.

The statutory definition and applicable conditions must be satisfied.

The court must examine the nature of the proceedings, the relevant public participation and the legal requirements governing SLAPP claims.

This development is important because it recognises that litigation itself may sometimes be used as a means of suppressing legitimate public participation.

The official legislation is available through the Economic Crime and Corporate Transparency Act 2023, section 195.

10. The Procedure for Applying for Strike-Out

An application to strike out a statement of case is generally made under Part 23 of the Civil Procedure Rules.

The application may be made by a party to the proceedings or, where appropriate, the court may exercise its powers on its own initiative.

Under Practice Direction 3A, applications concerning the grounds in CPR 3.4(2)(a) and (b) should be made as soon as possible and, where practicable, before the case is allocated to a track.

The application should identify the specific defect and explain why it falls within one or more of the statutory grounds.

The applicant should normally identify:

• The particular paragraphs or sections of the statement of case challenged.
• The applicable ground under CPR 3.4(2).
• The legal or procedural defect relied upon.
• Whether the defect can be corrected through amendment.
• The order sought from the court.

Not every application requires extensive supporting evidence.

For example, where the particulars of claim are legally incoherent on their face, the court may be able to assess the problem by examining the statement of case itself.

However, where the application relies on facts outside the pleadings, supporting evidence may be necessary.

The court may decide the application at a hearing or, where permitted by the rules, deal with it without a hearing.

The respondent should be given an appropriate opportunity to explain why the statement of case should remain before the court.

10.1 The court’s own initiative

The court does not always need to wait for a party to apply for strike-out.

It may exercise its powers under CPR 3.4(2)(a) or (b) on its own initiative.

For example, a judge examining a claim form may identify allegations that do not disclose any recognisable cause of action.

Similarly, a court may identify proceedings that appear to constitute an abuse of its process.

The court may invite the parties to make representations before deciding whether to strike out the statement of case.

The fact that the court has identified a potential defect does not mean that strike-out must automatically follow. The parties may be able to explain the legal basis of the claim or demonstrate that the apparent defect can be corrected.

11. Practice Direction 3A and the Judicial Approach to Strike-Out

Practice Direction 3A provides important guidance on the application of CPR 3.4.

It illustrates the distinction between a statement of case that is legally defective and one that merely requires clarification or better drafting.

For example, a claim that states only that a defendant owes a specified amount of money may fail to identify the facts giving rise to the alleged obligation.

Similarly, a defence that contains no coherent response to the claim may be incapable of providing a proper basis for defending the proceedings.

However, where the underlying claim is legally recognisable but insufficiently particularised, the court may prefer to order further information or an amendment.

This approach reflects the wider principle that procedural rules should facilitate the fair resolution of disputes rather than create unnecessary technical obstacles.

Practice Direction 3A also recognises that the same circumstances may justify either strike-out or summary judgment.

For example, where the facts pleaded by a claimant, even if accepted as true, cannot establish a legally sustainable cause of action, strike-out may be appropriate.

Where the claim is legally arguable but the available evidence demonstrates that it has no real prospect of success, summary judgment may be the more appropriate procedure.

The distinction depends on the nature of the defect and the basis on which the application is made.

The full guidance is available here: Practice Direction 3A – Striking Out a Statement of Case.

12. Summary Judgment and Strike-Out: The Essential Differences

Although the two procedures may lead to the dismissal of a claim or defence without a full trial, they are not interchangeable.

Their legal tests, purposes and practical applications differ.

Issue	Summary judgment	Strike-out
Principal provision	CPR Part 24	CPR 3.4
Main purpose	Determine a claim or issue without trial	Remove a defective or abusive statement of case
Legal test	No real prospect of success and no compelling reason for trial	One or more specified grounds under CPR 3.4
Evidence	Usually involves consideration of written evidence and legal arguments	May be based on the statement of case itself or additional evidence
Factual disputes	Must avoid conducting a mini-trial	Depends on the particular ground and circumstances
Scope	Whole claim, defence or particular issue	Whole statement of case or part of it
Procedural non-compliance	Not the central test	Express ground under CPR 3.4(2)(c)
Abuse of process	May be relevant to the overall circumstances	Express ground under CPR 3.4(2)(b)

The most important distinction is that summary judgment examines the prospects of success, whereas strike-out examines whether the statement of case falls within one of the specified grounds for removal.

12.1 When should a party apply for summary judgment?

Summary judgment is generally appropriate where the opposing party has no realistic prospect of succeeding, but the statement of case is not necessarily defective on its face.

For example, a defendant may plead a legally recognisable defence to a contractual claim, but the documentary evidence may demonstrate that the defence has no realistic factual foundation.

The defendant’s statement of case may be coherent and properly drafted, yet the defence may still be incapable of succeeding.

12.2 When should a party apply for strike-out?

Strike-out is generally appropriate where the problem concerns the legal or procedural validity of the statement of case itself.

For example, a claimant may plead facts that, even if accepted as true, do not establish any recognised legal right against the defendant.

In such circumstances, a full examination of the evidence may be unnecessary because the pleaded case is legally insufficient.

12.3 Can both applications be made together?

Yes. In appropriate circumstances, a party may apply for strike-out and summary judgment in the alternative or pursue both procedures where they address different aspects of the same dispute.

Practice Direction 3A expressly recognises that a party may consider either or both procedures where the opponent’s case appears legally or factually unsustainable.

For example, a defendant may argue that the particulars of claim disclose no reasonable grounds under CPR 3.4(2)(a). Alternatively, if the court considers the claim sufficiently pleaded, the defendant may argue that the claimant nevertheless has no real prospect of success under CPR Part 24.

The applications should be carefully structured so that the court can identify the distinct legal basis of each argument.

13. The Court’s Discretion and the Possibility of Amendment

Strike-out is a serious procedural measure because it may effectively terminate a party’s claim or defence.

For this reason, the court may consider whether a defect can be corrected through amendment rather than removing the statement of case entirely.

The power to permit amendments is governed principally by CPR 17.

A claimant whose particulars of claim are unclear may be allowed to provide additional details. A defendant whose defence is inadequately formulated may be permitted to amend it.

The court must consider the nature of the defect and the consequences of allowing the amendment.

Relevant considerations may include:

• Whether the proposed amendment introduces a fundamentally different claim or defence.
• Whether it causes prejudice to the opposing party.
• Whether additional disclosure or evidence will be required.
• Whether the amendment would delay the proceedings.
• Whether the prejudice can be addressed through costs or procedural directions.

The possibility of amendment does not mean that every defective statement of case should be allowed to continue indefinitely.

Where the defect is fundamental or the party has repeatedly failed to correct it, strike-out may be justified.

The court’s task is to achieve a fair and proportionate outcome while ensuring that procedural requirements are respected.

14. Consequences of a Strike-Out Order

The consequences depend on whether the entire statement of case or only part of it is struck out.

14.1 Strike-out of the entire claim

Where a claimant’s entire statement of case is struck out, the claimant will generally lose the proceedings, subject to any consequential order made by the court and any available appeal or other procedural remedy.

The court may enter judgment for the defendant where appropriate.

The claimant may also be ordered to pay the defendant’s costs.

However, the precise consequences depend on the nature of the order and the circumstances of the proceedings.

14.2 Strike-out of a defence

Where the defendant’s entire defence is struck out, the claimant may be entitled to obtain judgment.

The mechanism for judgment following strike-out is addressed by CPR 3.5.

That rule is particularly relevant where the court has made an order providing that a statement of case will be struck out if a party fails to comply with a specified requirement.

If the party fails to comply, the opposing party may obtain judgment through the procedure prescribed by the rule, where its conditions are satisfied.

In other circumstances, a further application may be necessary.

14.3 Partial strike-out

The court may strike out only the defective part of a statement of case.

For example, a claimant may bring several causes of action, some of which are legally sustainable and others of which disclose no reasonable grounds.

The court may remove the defective allegations while allowing the remaining claims to proceed.

This is an important aspect of proportionality. A defect in one part of a case does not necessarily justify terminating the entire proceedings.

14.4 Costs consequences

Applications for summary judgment and strike-out can generate significant legal costs.

The court will generally consider the costs consequences when determining the application.

A successful applicant may obtain an order for costs, subject to the court’s discretion and the applicable costs rules.

A party that brings an unnecessary or poorly founded application may also face an adverse costs order.

The prospect of an early procedural victory should therefore be assessed against the costs and risks of making the application.

15. The Relationship with Other Case Management Powers

Summary judgment and strike-out do not operate in isolation.

They form part of a wider system of judicial case management under CPR Part 3.

The court has extensive powers to control the progress of proceedings, including the ability to:

• Require parties to provide further information.
• Order amendments to statements of case.
• Stay proceedings.
• Exclude evidence.
• Impose conditions when making orders.
• Make orders concerning costs.
• Give directions for the efficient conduct of the proceedings.

These powers allow the court to select an appropriate response to procedural difficulties.

For example, where a defence is unclear, the court may require clarification rather than immediately strike it out.

Where a party repeatedly fails to comply with disclosure directions, the court may consider further orders, costs sanctions or strike-out, depending on the circumstances.

The central consideration is whether the proceedings can still be managed fairly and proportionately.

Summary judgment and strike-out are therefore particularly important where lesser case management measures would not adequately address the problem.

16. Practical Examples: How the Two Procedures Operate

The distinction becomes clearer when applied to common civil disputes.

Example 1: An undisputed contractual debt

A company supplies equipment under a written contract. The buyer receives the equipment, signs the delivery documentation and acknowledges the outstanding invoice.

The buyer subsequently refuses to pay but provides no credible explanation or evidence of a contractual defence.

The supplier issues proceedings and applies for summary judgment.

The court examines the contract, delivery records, invoice and correspondence. If the buyer has no real prospect of successfully defending the claim and no compelling reason for trial exists, summary judgment may be granted.

The issue is not necessarily that the buyer’s defence is improperly drafted. Rather, the available evidence demonstrates that it has no realistic prospect of success.

Example 2: A claim based on facts that do not establish a legal right

An individual brings proceedings against a former business associate, alleging that the defendant owes compensation because the claimant feels that the defendant acted unfairly.

The particulars of claim contain no identifiable contractual, tortious, statutory or other legal basis for the requested remedy.

Even if the claimant’s factual allegations are accepted as true, they do not establish a recognised cause of action.

The defendant may apply to strike out the claim under CPR 3.4(2)(a).

The court will consider whether the pleaded facts disclose reasonable grounds for bringing the proceedings.

Example 3: Repeated failure to comply with court orders

A claimant is ordered to provide further particulars and relevant documents by a specified date.

Despite repeated directions and opportunities to comply, the claimant fails to provide the required material and does not offer a satisfactory explanation.

The defendant may seek strike-out under CPR 3.4(2)(c).

The court will examine the seriousness of the non-compliance and whether another procedural measure would be sufficient.

Example 4: A genuine dispute requiring oral evidence

A claimant alleges that a defendant made an oral promise to guarantee a commercial debt.

The defendant denies making the promise. Both parties provide witness statements, and the dispute depends substantially on their credibility.

The defendant applies for summary judgment, arguing that the claimant has no real prospect of success.

However, the claimant identifies relevant contemporaneous communications and potential supporting witnesses.

The court may conclude that the factual dispute requires oral evidence and cross-examination.

Even if the defendant considers its own evidence stronger, that is not necessarily sufficient to justify summary judgment.

Example 5: A claim involving several independent issues

A claimant brings proceedings concerning three separate breaches of a distribution agreement.

The defendant has a complete and legally sustainable defence to two alleged breaches but admits that the third occurred.

The parties disagree only about the legal consequences and the amount of compensation relating to the admitted breach.

The court may consider partial summary judgment or another appropriate procedural order to resolve issues that do not require a full trial, while allowing the remaining questions to proceed.

These examples illustrate that the procedures are designed to respond to different types of legal and factual problems rather than provide a single universal method of early dismissal.

17. Appeals and Challenging the Court’s Decision

An order granting or refusing summary judgment or strike-out may be subject to appeal, provided the relevant requirements are satisfied.

The general framework for appeals is contained in CPR Part 52.

Permission to appeal is normally required. The court will consider whether the appeal has a real prospect of success or whether there is some other compelling reason for it to be heard.

An appeal is not simply an opportunity to repeat the arguments made before the first-instance judge.

The appellant must identify an error in the decision, such as an incorrect application of the relevant legal test, a material procedural irregularity or an unjustified exercise of judicial discretion.

Where summary judgment has been granted, the unsuccessful party may argue that the judge improperly resolved disputed factual matters that required a trial.

Where a statement of case has been struck out, the appellant may argue that the pleaded case did disclose reasonable grounds, that the court misunderstood the nature of the claim or that strike-out was disproportionate in the circumstances.

The availability of an appeal is an important safeguard, but it does not remove the need for parties to present their cases properly at the original hearing.

The applicable rules can be consulted in CPR Part 52 – Appeals.

Key Takeaways

1. Summary judgment and strike-out are separate procedures. Both can dispose of proceedings without a full trial, but they operate under different legal tests.

2. CPR Part 24 governs summary judgment. It allows the court to determine a claim, defence or particular issue where a party has no real prospect of succeeding and there is no compelling reason for a trial.

3. The test is not whether a party is more likely to win. The court distinguishes between a realistic prospect of success and a merely fanciful possibility.

4. The court must avoid conducting a mini-trial. Genuine factual disputes requiring oral evidence or cross-examination may justify a full trial.

5. Strike-out is governed by CPR 3.4. It allows the court to remove a statement of case or part of it on specified legal or procedural grounds.

6. There are four grounds for strike-out under the current CPR 3.4(2). These concern the absence of reasonable grounds, abuse of process, procedural non-compliance and qualifying SLAPP claims.

7. Summary judgment may be granted to either claimant or defendant. It may determine an entire claim or only a particular issue.

8. Strike-out may be partial or complete. The court can remove defective allegations without necessarily terminating the entire proceedings.

9. Applications must be properly supported. Parties should identify the relevant legal grounds and provide appropriate documentary evidence and legal arguments.

10. Procedural non-compliance does not automatically justify strike-out. The court considers the seriousness of the breach and whether another measure would be more appropriate.

11. Amendment may be preferable to strike-out. Where a statement of case is defective but capable of correction, the court may permit an amendment under CPR Part 17.

12. Both procedures support the overriding objective. They help prevent unnecessary trials, disproportionate costs and misuse of judicial resources.

13. The court’s decision may be appealed. CPR Part 52 governs the relevant appellate procedure, subject to permission requirements.

Frequently Asked Questions (FAQs)

1. What is summary judgment in England and Wales?

Summary judgment is a procedure under CPR Part 24 that allows the court to determine a claim or particular issue without a full trial where a party has no real prospect of succeeding and there is no other compelling reason for a trial.

2. What does no real prospect of success mean?

It means that the party’s case must have a realistic foundation rather than a merely fanciful possibility of success. The court considers the legal arguments and available evidence but must avoid conducting a full trial at the preliminary stage.

3. Can a claimant apply for summary judgment?

Yes. A claimant may apply where the defendant has no real prospect of successfully defending the claim. The application must satisfy the requirements of CPR Part 24.

4. Can a defendant apply for summary judgment?

Yes. A defendant may apply where the claimant has no real prospect of succeeding on the claim or a particular issue. Certain residential possession proceedings are excluded by CPR 24.2.

5. What is strike-out?

Strike-out is a procedural mechanism under CPR 3.4 that allows the court to remove a statement of case or part of it where specified legal or procedural grounds exist.

6. What are the grounds for strike-out?

The grounds under CPR 3.4(2) are:

• The statement of case discloses no reasonable grounds for bringing or defending the claim.
• It constitutes an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings.
• There has been a failure to comply with a rule, practice direction or court order.
• In qualifying SLAPP proceedings, the claimant has failed to demonstrate that the claim is more likely than not to succeed at trial.

7. What is the difference between summary judgment and strike-out?

Summary judgment examines whether a party has a real prospect of succeeding. Strike-out examines whether a statement of case is legally or procedurally defective under the specified grounds in CPR 3.4.

8. Can summary judgment be granted without examining all the evidence?

Yes. The purpose is to determine cases or issues that do not require a full trial. However, the court must consider the relevant material sufficiently to determine whether the legal test is satisfied.

9. What happens if a claim is struck out?

The claimant may lose the entire proceedings or the affected part of the claim. The court may also make consequential orders, including an order for costs or judgment for the opposing party where appropriate.

10. Can a defendant’s defence be struck out?

Yes. A defence may be struck out if it discloses no reasonable grounds, constitutes an abuse of process or fails to comply with relevant procedural requirements.

11. Can the court strike out a claim because of a procedural mistake?

Yes, under CPR 3.4(2)(c), but strike-out is not automatic. The court considers the seriousness of the breach, its consequences and whether another procedural measure would be more appropriate.

12. Can a party amend a statement of case instead of having it struck out?

Yes. CPR Part 17 allows amendments to statements of case, subject to the applicable requirements and the court’s permission where necessary. The court may prefer amendment where a defect can be corrected fairly.

13. What is a mini-trial in summary judgment proceedings?

A mini-trial occurs when the court attempts to resolve disputed factual matters through an examination of preliminary evidence that properly requires a full trial. The principles in Swain v Hillman prohibit this approach.

14. What is a SLAPP claim?

A strategic lawsuit against public participation is a form of litigation falling within the relevant statutory definition and associated with attempts to suppress or intimidate public participation. CPR 3.4(2)(d), read with section 195 of the Economic Crime and Corporate Transparency Act 2023, provides a specific strike-out mechanism for qualifying claims.

15. Can summary judgment and strike-out applications be made together?

Yes. A party may rely on both procedures where the circumstances justify it. For example, a defendant may argue that the claim discloses no reasonable grounds and, alternatively, that it has no real prospect of success.

16. Can a court grant summary judgment on only part of a claim?

Yes. CPR Part 24 expressly permits summary judgment on a particular issue. The remaining parts of the proceedings may continue to trial.

17. Can a decision granting summary judgment be appealed?

Yes, subject to the requirements of CPR Part 52 and the applicable permission-to-appeal rules. The appellant must establish an appropriate basis for challenging the decision.

Conclusion

Summary judgment and strike-out are essential mechanisms through which the civil courts of England and Wales maintain the efficiency, fairness and integrity of litigation.

Summary judgment allows the court to determine claims or issues that have no real prospect of success without requiring the expense and delay of a full trial. Strike-out protects the judicial process against legally defective claims, abusive proceedings and serious procedural non-compliance.

Although the procedures can produce similar practical outcomes, their distinct legal tests must be respected. The court must distinguish between a genuinely unsustainable claim and one that requires further evidence, examination or judicial determination at trial.

Their application reflects a fundamental principle of modern civil procedure: access to justice requires not only the opportunity to bring or defend legal proceedings, but also a system capable of resolving disputes efficiently, proportionately and fairly.

When properly applied, summary judgment and strike-out prevent unnecessary litigation while preserving the right of parties with genuinely arguable cases to have their disputes determined through the ordinary trial process.