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Citation of this passage in the speech of Lord Hope in Three Rivers DC v Bank of
England (No 3) [2003] 2 AC 1 at 259, has thereafter been taken in England and Wales
as a definitive endorsement of the abovementioned approach, not only in relation to
the summary disposal of proceedings but to other procedural questions involving the
"real prospect of success" test.
The position in England and Wales is therefore settled as a matter of authority. A
"real prospect" is the antithesis of a "fanciful prospect".
However, as indicated in
the Interim Report, it is not clear whether replacing the old "arguable defence" test
with the new test so explained has made any practical difference. Could it not equally
be said of a defence which is arguable that it is "not fanciful" Does this new verbal
formula affect the way in which courts actually deal with summary applications or the
advice that lawyers give to their clients regarding the launching of applications for
summary judgment or for striking out pleadings
Proposal 14 suggests that any new rule should be couched in terms making it clear
that any "real prospect of success" test adopted in this jurisdiction is to be understood
as establishing a lower threshold than applicable under the RHC for the grant of
summary judgment. However, the Working Party considers that such an attempt to
effect what is a relatively fine conceptual adjustment to the threshold for summarily
disposing of a claim or defence is likely to suffer from the inherent difficulties
discussed above, leading to unsatisfactory results. It is doubtful whether replacing the
present rules with one importing the real prospect of success test would be beneficial
or have any practical effect.
Notes
See, eg, Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311 at 1316; Intel Corp v VIA
Technologies Inc [2002] EWCA Civ 1905, [2002] All ER (D) 346 (CA) §35; Three Rivers District
Council and others v Bank of England (No 4) [2002] EWCA Civ 1182, [2003] 1 WLR 210, [2002] 4
All ER 881 (CA) §33.
Derksen v Pillar [2002] All ER (D) 261, §18.
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