Strike Out vs Summary Judgment: Key Differences, Strategic Use and Evidential Thresholds

In commercial and property disputes, early disposal applications can save significant time and cost.

Two of the most effective tools are strike out applications and applications for summary judgment. Although they are often grouped together, they operate differently and carry different evidential burdens. Understanding when and how to use each can shape litigation strategy and outcomes.

What Is a Strike Out?

A strike out (under CPR 3.4) removes all or part of a statement of case. It is available where:

• The pleading discloses no reasonable grounds for bringing or defending the claim.
• The statement of case is an abuse of process.
• There has been a failure to comply with a rule, order or practice direction.

A strike out focuses primarily on the pleadings themselves. The court assumes the facts are true and asks whether the case is legally viable.

Evidential Threshold (Strike Out)

The threshold is low. The applicant does not need to prove facts but only demonstrate that, even if the pleaded case is accepted, it cannot succeed.

What Is Summary Judgment?

Summary judgment (CPR 24) is a final determination of the claim or an issue without a trial. It is available to claimants and defendants where the other side has:

• No real prospect of succeeding or defending; and
• No compelling reason for a trial.

Summary judgment is evidence-driven. The court assesses witness statements, documents, and the inherent strength of each side’s case.

Evidential Threshold (Summary Judgment)

Higher than strike out. The applicant must show positively that the opponent’s case has no realistic prospect of success, not merely that it is weak.

Key Differences

• CPR Basis: Strike out (CPR 3.4) vs summary judgment (CPR 24).
• Evidence: Strike out rarely uses evidence; summary judgment depends on it.
• Threshold: Low vs moderate/high.
• Purpose: Strike out removes defective pleadings; summary judgment resolves cases early.
• Outcome: Strike out removes parts of a case; summary judgment can produce a final judgment.

Strategic Considerations for Claimants

Using Strike Out:

• Narrow issues early where a defence is poorly pleaded.
• Remove speculative or irrelevant claims or defences.
• Pressure the defendant to re‑plead, exposing weaknesses.

Using Summary Judgment:

• Deploy where documentary evidence is strong (contracts, guarantees, invoices).
• Apply early to secure quick judgment and avoid trial costs.
• Increase pressure on defendants who must file evidence quickly.

Risks for Claimants:

• Failed applications can strengthen the defendant’s confidence.
• Costs consequences if the court finds the application premature.
• Court may view it as tactical if the case is fact‑sensitive.

Strategic Considerations for Defendants

Opposing Strike Out:

• Argue the pleading can be cured by amendment.
• Emphasise fact‑sensitive issues unsuitable for disposal.
• Highlight any procedural unfairness.

Opposing Summary Judgment:

• File evidence showing a realistic defence.
• Identify issues needing disclosure or cross‑examination.
• Stress that the dispute turns on contested factual matters.

Defendants may also make their own strike out or summary judgment applications where appropriate, particularly where claims are legally incoherent or contradicted by documents.

Practical Tips For Applicants:

• Be precise about which CPR mechanism applies.
• Focus the application on a narrow, defensible issue.
• Anticipate amendments or evidential responses.

Practical Tips For Respondents:

• Move fast – summary judgment evidence deadlines are strict.
• Reinforce pleadings to avoid strike‑out exposure.
• Offer reasonable amendments to avoid unnecessary hearings.

Conclusion

Strike out and summary judgment remain vital tools for efficiently managing commercial litigation. Strike out targets defective pleadings and procedural abuses, whereas summary judgment addresses the substantive merits where a trial is unnecessary. Used effectively, they reduce cost, increase certainty and provide early resolution opportunities.

DISCLAIMER: The information provided on this blog is for general guidance only and does not constitute legal advice. If you require tailored legal advice, please contact us to discuss your specific circumstances.

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