Summary Judgment vs. Strike Out – What’s the Difference?

Whether you’re contemplating a claim or are a defendant, early disposal is a vital strategic tool in property and commercial disputes.

Summary judgment and strike out are two mechanisms of early disposal which can save time and cost. They’re commonly confused but operate differently with different evidential burdens and potential outcomes.

We act nationally for parties on both sides of commercial, property and construction disputes. If you’re facing a claim, or weighing whether to bring one, contact Helix Law today for a no-cost, no-obligation initial conversation about your options. Our team have decades of experience handling matters similar to yours, and we are happy to help.

What Is Summary Judgment? 

A summary judgment is a procedure by which the court may decide a claim or dispute without a trial. This is possible under Civil Procedure Rule (CPR) 24.

The court may order summary judgment where it considers that a party has no real prospect of succeeding on the claim, defence or issue, and there is no compelling reason why the case or issue should be disposed of at trial (CPR 24.3).

Summary judgment is different from default judgment.

What Is a Strike Out Application? 

A strike out application is permitted under Civil Procedure Rule 3.4 and can remove part or all of a case.

When considering a Strike out application,the court evaluates the pleadings as they stand to determine whether the case (as pleaded)is legally viable.

Strike out is available where the statement of case discloses no reasonable grounds for bringing or defending the claim or the case is an abuse of the courts process. Strike out is also possible if either party has failed to comply with the Civil Procedure Rules, a practice direction, or court order.

Key Differences Between Summary Judgment and Strike Out 

What Each Procedure Targets 

Summary judgment is a key mechanism to resolve a case early. An applicant asks the court to reach a conclusion without waiting for a trial, limiting delay and expense.

Strike out removes irrelevant or speculative claims and defences. It also removes pleadings which are defective due to procedural irregularities and where there is no dispute over the facts.

The Evidential Threshold

Summary judgment and strike out are judged against different thresholds. Summary judgment has the higher threshold. .

For summary judgment, you need to show the other side’s case has no realistic prospect of success. That’s a high bar: the court weighs the evidence in full, and a weak case simply won’t clear it.

Strike out works differently. You don’t need to disprove the facts, you just need to show that, even taking them at face value, the case can’t succeed because of a procedural failure or because it’s fundamentally flawed. That’s why the threshold is lower.

What a Successful Application Achieves 

Where a strike out order is made, the relevant statement of case (or part of it) is deleted and can no longer be relied on. If an entire statement of case is struck out, this usually means, in effect, the end of the substantive proceedings. If only part is struck out, the remaining issues continue through the litigation process. Summary judgment, by contrast, is a final judgment from the court without a trial.

Can You Bring Both Applications Together? 

Both applications target different areas and are effectively a mirror image of each other.

For summary judgment, the court considers the merits of the case and decides a claim without a trial. Strike out is there for procedural abuses and defective pleadings and effectively removes all or part of a case so it can’t proceed any further.

Both processes are distinct and standalone, operating under different rules.

However, as the court has power to award strike out and summary judgment, it’s quite common for both processes to appear in one application as alternative options designed to strategically defeat the claim one way or the other.

If the application for strike out fails, the applicant effectively has a second bite of the cherry.

The Risks of Bringing an Application 

There’s no doubt that both applications may offer strategic advantages in a dispute; however, they’re not without risks.

Failed applications can increase the confidence of the opposing party and may lead to the unsuccessful applicant paying the other side’s costs as well as their own.

Additionally, if the court finds the application premature (before the defence is filed), there may be adverse cost consequences against the applicant. Therefore, the timing of an application is crucial.

When These Applications Are Worth Considering 

Strategically, strike out and summary judgment should always be on the table at an early stage.

Strong Cases

If you have a strong case with plenty of supporting documentary evidence, then applying for summary judgment can save the delay and cost of waiting for a trial. The stronger your paper trail, contracts, correspondence, invoices, the more likely the court can decide the matter on the documents alone. If your case ticks that box, there’s little reason to wait months for a trial date when the outcome is already clear on the evidence.

However, summary judgment is generally not considered appropriate for complex disputes of law or fact, or those where a fuller investigation into the facts at trial would add to or alter the evidence available.

Speculative or Malicious Claims

If a claim is speculative or malicious, then applying for strike out can remove part of or the entire case. If a defence is poorly pleaded, an application for strike out may pressurise the defendant into re-pleading which can identify weaknesses.

This is particularly useful where you suspect a claim has been brought to cause disruption rather than to recover a genuine loss. Even if strike out doesn’t succeed outright, forcing the other side to justify their pleading in writing can expose gaps in their case early.

Inaccurate Claims

If a defendant is faced with an inaccurate or incoherent claim, they have both options open to them. Strike out is often the quicker route where the claim itself doesn’t add up on its face. Summary judgment may be the better option if the claim is coherent but simply unsupported once the evidence is tested.

Weigh Opposing Party’s Position

Part of the consideration process should involve the likely response of the other party in terms of potential amendments or evidential responses.

In opposing an application for summary judgment, the opposing party may file a realistic defence or produce evidence that requires cross-examination.

Faced with a strike out, a party may argue that the pleading can be amended, that the claim pivots on disputed facts, or that there are fact-sensitive issues which make the case unsuitable for disposal.

Strategically, both applications put pressure on the opposing party and may increase the chances of settlement. Applications are usually issued early in the proceedings, typically after the defence has been filed.

Frequently Asked Questions 

What Are the Disadvantages of Summary Judgment? 

The disadvantages of summary judgment are the high evidential threshold, the risk of an adverse costs order if the application fails, and its unsuitability for complex cases. You must show the claim or defence has no realistic prospect of success, and because the process relies on written evidence, it doesn’t work well where expert testimony is needed.

Why Would Someone Want Summary Judgment?

Summary judgment saves the time and cost of a trial, providing a quicker and more cost-effective way to resolve a dispute. Summary judgment is often used strategically as just the prospect of an application can put pressure on the other party to settle.

What Are the Grounds for Striking Out a Claim?

The grounds to strike out a claim are outlined in the Civil Procedure Rules 3.4(2) and include: the statement of case disclosing no reasonable grounds for bringing or defending the claim; the statement of case being an abuse of the court’s process; and failure to comply with a rule, practice direction or court order. The decision to order a strike out is always taken with reference to the overriding objective and whether such an order would be proportionate.

Need Advice? Contact Helix Law.

Summary judgment and strike out are both types of early disposal. Used effectively, they reduce cost and provide an opportunity for early resolution in commercial disputes. However, both options are strategic and carry risks.

Bad timing can reveal an applicant’s position too early in the process as well as exposing them to an adverse costs order. The right application and its timing depend on the unique facts of each case and informed legal guidance.

We’re a team of specialist litigation solicitors providing practical and strategic advice on all aspects of commercial problems ranging from contractual disputes to property issues, rent arrears, and debt claims.

We offer cost-effective solutions that are aligned with your commercial objectives. We clearly set out the different options protecting your position whilst expediting a fast resolution. For qualifying cases, we offer No Win No Fee funding. This is available on commercial, property, and construction disputes typically valued over £10,000 with strong prospects of success, subject to case assessment and our funding criteria.

If you’re in a dispute situation and unsure of your options, contact Helix Law today for a no-cost, no-obligation initial conversation. We act nationally and would love to assist you.