The judgment of Mr Andrew Sutcliffe QC (sitting as a Judge of the High Court) in St Clair v King and another [2018] EWHC 682 (Ch) highlights the importance of the procedural differences between applications to strike out a statement of case, pursuant to CPR 3.4(2), and those for summary judgment in accordance with CPR 24.2. 

The case concerned a disputed will. The Defendants applied to strike out the claim and the Claimant filed an application to amend their particulars of claim. The application was heard by Master Price who struck out the claim in its entirety on the basis that the claim, as pleaded, had “no real prospect of success”. The Master had treated the Defendant’s application to strike out as an application for summary judgment. 

It will be the experience of many practitioners that applications to strike out and for summary judgment often go hand in hand. Mr Andrew Sutcliffe QC noted that the Court had a discretion, where the circumstances make it appropriate to do so, to treat an application to strike out as one for summary judgment, but there were significant procedural differences between the two, in particular the entitlement to file evidence in reply to a summary judgment application. Noting with concern that the Master’s judgment did not expressly consider the fairness to the Claimant of treating the application as one for summary judgment, the appeal was allowed on the ground that there had been a serious procedural irregularity.