NG254675: Assessment of Summary Judgment and Strike-Out Applications Defendant’s Advocacy Submission

Introduction

1. This skeleton argument is submitted on behalf of the Defendant, Miss Carly Dawson, in opposition to the Claimant’s application for:
2. Summary judgment under CPR 24.2; or, in the alternative,
3. The Defendant’s Defence to be struck out under CPR 3.4(2)(a).

Defendant’s Position

1. The Defendant submits that the Claimant’s application should be dismissed, as there exist substantial factual disputes regarding liability and causation that necessitate a full trial. The Defendant asserts that:

1. • The invoice governing the transaction (Exhibit TJ1) explicitly excludes liability for installation or operation, which is at the heart of the Claimant’s allegations.
   • The Claimant relies on Exhibit TJ2, a report from a competitor supplier, raising concerns over impartiality and credibility.
   • Industry standards require appropriate testing of fish tanks before use; the Claimant’s failure to do so is a material issue of contributory negligence.
   • The Defendant has obtained independent expert evidence (Exhibit CD2) confirming that the tanks were not defective, directly contradicting the Claimant’s claims.

Hearing Details

1. The hearing of this application is scheduled for 1 April 2025 at the County Court at Nottingham.

Issues to be Determined

1. The key issues before the Court are:

Whether the Defendant has a real prospect of successfully defending the claim within the meaning of CPR 24.2.

CPR 24.2 provides that summary judgment may only be granted where:

The defendant has no real prospect of successfully defending the claim; and There is no other compelling reason why the case should be disposed of at trial.

The Defendant submits that her Defence meets the threshold set out in CPR 24.2, as there are significant factual disputes that require judicial determination. In particular:

The invoice (Exhibit TJ1) clearly states that the customer is responsible for installation and operation of the tanks. The Claimant’s reliance on a competitor’s report (Exhibit TJ2) raises issues regarding impartiality and potential commercial bias. The Claimant failed to adhere to industry-standard installation procedures, contributing to the alleged losses.

In Swain v Hillman [2001] 1 All ER 91, the Court of Appeal held that summary judgment should not be granted unless it is clear that the claim or defence has no real prospect of success. The Defendant contends that her Defence raises triable issues, making summary judgment inappropriate.

Furthermore, in Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16, the House of Lords emphasized that summary judgment should not be used where a case involves complex factual disputes that require a full trial. Given the factual complexities involved in this matter, a trial is necessary.

Whether the Defendant’s Defence should be struck out under CPR 3.4(2)(a) for disclosing no reasonable grounds of defence.

CPR 3.4(2)(a) provides that a statement of case may be struck out if it discloses no reasonable grounds for defending the claim. The Defendant’s Defence, as outlined in her witness statement, raises several material issues that warrant full consideration at trial:

The tanks supplied were not defective, as confirmed by an independent tank repair specialist (Exhibit CD2). The Claimant failed to follow proper installation procedures, which contributed to the loss of fish. The Defendant had no contractual obligation to install or monitor the tanks after delivery, per the terms of sale. In Annan v Ng [2013] EWCA Civ 905, the Court of Appeal held that striking out a defence should not be used where there are disputed facts requiring resolution at trial. Given the contested nature of the Claimant’s allegations, striking out the Defence would be premature and unjust. Similarly, in Hughes v Colin Richards & Co [2004] EWCA Civ 266, it was held that a defence should not be struck out if it raises a triable issue. Since the Defendant’s Defence presents a viable legal and factual argument, striking it out would be inappropriate.

Whether the case involves factual disputes that require full consideration at trial.

The Defendant submits that the case involves significant factual disputes, including:

The condition of the tanks upon delivery. The adequacy of the installation process carried out by the Claimant. The cause of the fish loss and whether it was due to any defect in the tanks or the Claimant’s failure to follow proper installation guidelines.

The presence of these factual disputes makes it inappropriate to resolve the matter through summary judgment. The court in ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 held that where a case involves serious factual disputes, it should proceed to trial rather than be disposed of summarily.

Furthermore, Exhibit TJ2 (the competitor’s report) is a key piece of evidence in dispute. The Defendant challenges its impartiality and reliability. This issue cannot be resolved summarily and requires proper examination of the credibility of the report and any expert testimony at trial.

The Claimant also failed to test the tanks before introducing high-value fish, contrary to standard industry practice. This raises further factual questions as to whether the Claimant’s alleged loss was self-inflicted.

Given these material factual disputes, the Defendant submits that justice requires that the matter proceeds to trial, where all evidence can be properly examined and tested through cross-examination.

Legal Framework

1. The Defendant relies on the following legal framework:

5.1 CPR 24.2 – Summary Judgment

1. • The court may grant summary judgment if the Defendant has no real prospect of successfully defending the claim and there is no other compelling reason for a trial.

5.2 CPR 3.4(2)(a) – Striking Out

1. • A statement of case may be struck out if it discloses no reasonable grounds for defending the claim.

5.3 The Defendant submits that the application should be dismissed because the Defence presents arguable legal and factual issues warranting a trial.

The Defendant’s Response

1. The Defendant disputes the application and submits that:
   • The invoice (Exhibit TJ1) expressly excludes liability for installation and operation of the tanks.

1. • • The contractual terms, as evidenced in Exhibit TJ1, explicitly state that the Defendant was responsible solely for supplying the tanks and not for their installation or operation.

• The Claimant relied on advice from a competitor supplier (Exhibit TJ2), whose impartiality is questionable.

1. • • Exhibit TJ2 demonstrates that the Claimant sought guidance from a rival supplier who had a vested interest in discrediting the Defendant’s product.

• The Claimant did not follow standard industry practices for testing the tanks before introducing high-value fish.

1. • • Standard industry procedures require adequate testing of tanks before placing valuable stock. The Claimant’s failure to do so raises serious questions of contributory negligence.

• The Defendant obtained an independent expert opinion (Exhibit CD2) confirming the tanks were free from defects.

1. • • The Defendant commissioned an independent expert, whose report (Exhibit CD2) verifies that the tanks met the required standards and were free from defects, contradicting the Claimant’s allegations.

Analysis of Evidence & Exhibits

1. The Defendant will rely on the following evidence and exhibits:

7.1 Exhibit TJ1 (Invoice)

1. • The invoice explicitly states that the customer is responsible for installation and operation of the tanks.
   • The Claimant assumed full risk by failing to conduct proper testing before introducing the fish.

7.2 Exhibit TJ2 (Competitor Report)

1. • The report is from a direct competitor, whose impartiality is questionable.
   • The supplier may have a commercial interest in supporting the Claimant’s case.
   • The Defendant obtained an independent expert opinion (Exhibit CD2) stating that the tanks were free from defects.

7.3 Exhibit CD1 (Defendant’s Email Advice to Claimant)

1. • The Defendant clearly advised the Claimant to wait 48 hours before introducing fish and to change the water before introduction.
   • The Claimant ignored this advice, which likely caused the loss of fish.

Conclusion

1. The Defendant respectfully submits that the Claimant’s application should be dismissed because:

1. • The Defendant has a real prospect of successfully defending the claim.
   • The case involves genuine factual disputes requiring full trial consideration.
   • The Defendant’s Defence raises reasonable legal and factual grounds, making it inappropriate for summary judgment or striking out.

1. The Defendant requests that the Court dismiss the Claimant’s application and allow the case to proceed to trial.

Relief Sought

1. The Defendant seeks the following relief:

• That the Claimant’s application for summary judgment under CPR 24.2 be dismissed.
• That the Claimant’s application to strike out the Defence under CPR 3.4(2)(a) be dismissed.
• That the Defendant be granted costs for responding to the application.

Possible Questions from the Judge & Sample Answers

1. Q1: Why should this case proceed to trial rather than be decided now?

1. • A1: There are significant factual disputes, including the Claimant’s reliance on an interested third party’s report and the explicit exclusion of liability in the invoice. These require full examination at trial.

1. Q2: What is the strongest defence argument?

1. • A2: The strongest argument is that the invoice (Exhibit TJ1) clearly states that the Defendant is not liable for installation or operation. The Claimant assumed responsibility when installing the tanks.

1. Q3: Why should Exhibit TJ2 not be relied upon?

1. • A3: The report is from a competitor fish tank supplier, who may have a vested interest in supporting the Claimant’s case. Their impartiality is questionable.

Speaker Notes for 15-Min Oral Presentation

1. Introduction 
   • Opening Statement:

1. • • May it please the Court, I appear on behalf of the Defendant, Miss Carly Dawson, in opposition to the Claimant’s application for summary judgment under CPR 24.2 or, in the alternative, for striking out the Defence under CPR 3.4(2)(a).

• Case Background:

1. • • The Claimant alleges that the Defendant supplied defective fish tanks, causing financial loss. However, the Defendant's position is that:
       • (i) The invoice (Exhibit TJ1) expressly excludes liability for installation and operation.
       • (ii) The Claimant relied on a report from a competitor supplier (Exhibit TJ2), whose impartiality is questionable.
       • (iii) The Claimant did not follow standard industry procedures for testing the tanks before introducing high-value fish.
       • (iv) An independent expert report (Exhibit CD2) confirms that the tanks were free from defects.

• Key Legal Issues:

1. • • The key issues before this court are:
       • (1) Whether the Defendant has a real prospect of successfully defending the claim, as per CPR 24.2.
       • (2) Whether the Defence should be struck out under CPR 3.4(2)(a) for disclosing no reasonable grounds of defence.
       • (3) Whether there exist factual disputes that necessitate a full trial consideration.

Oral Submissions for the Defendant

Judge’s Attention:
May it please the Court, I appear on behalf of the Defendant, Miss Carly Dawson, in opposition to the Claimant’s application for summary judgment under CPR 24.2 or, in the alternative, for striking out the Defence under CPR 3.4(2)(a). I will take the Court through my Skeleton Argument (paragraph references), key legal authorities, and relevant exhibits in support of my submission that this matter requires a full trial.

Structure of the Submissions

My submissions will cover three points:

1. First, why the Defendant has a real prospect of successfully defending the claim, as required by CPR 24.2.
2. Second, why striking out the Defence under CPR 3.4(2)(a) is inappropriate.
3. Third, why there exist factual disputes requiring judicial determination at trial.

First Submission

My first submission concerns CPR 24.2, which provides that summary judgment should only be granted where there is no real prospect of successfully defending the claim and no other compelling reason for trial. This principle is confirmed in Swain v Hillman [2001] 1 All ER 91 (Skeleton Argument para 4.1.3). The Defendant’s case presents clear factual disputes that require judicial determination.

Paragraph Reference in Skeleton Argument: 

White Book Reference: CPR 24.2, White Book (2024), Volume 1, para 24.2.3 – ‘Real prospect of success’

In this case, the following factors demonstrate a viable Defence:

1. Contractual Exclusion of Liability (Exhibit TJ1 – Invoice)
   • The invoice governing the sale (Skeleton para 4.1.2) states that the Defendant was not responsible for installation or operation.
   • This directly contradicts the Claimant’s allegations that the tanks were defective due to installation issues.
2. The Claimant’s Reliance on a Competitor’s Report (Exhibit TJ2 – Competitor Report)
   • The Claimant relies on Exhibit TJ2, a report prepared by a direct competitor, raising serious concerns of impartiality and bias (Skeleton para 4.1.2).
   • The Court in Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16 (Skeleton para 4.1.4) held that summary judgment should not be granted where expert evidence is in dispute.
3. Contributory Negligence: Claimant Failed to Follow Industry Standards (Exhibit CD1 – Defendant’s Email Advice to Claimant)
   • The Defendant advised the Claimant to test the tanks before introducing high-value fish (Skeleton para 7.3). This advice was ignored.
   • The Claimant’s failure to test constitutes contributory negligence.

Second Submission

My second submission relates to the Claimant’s alternative application under CPR 3.4(2)(a), which allows striking out where a Defence discloses no reasonable grounds. However, the Court of Appeal in Hughes v Colin Richards & Co [2004] EWCA Civ 266 (Skeleton para 4.2.4) held that a Defence should not be struck out if it raises a triable issue.

Paragraph Reference in Skeleton Argument:

White Book Reference: CPR 3.4.2, White Book (2024), Volume 1, para 3.4.2.1 – ‘No reasonable grounds for defence’

In this case, the Defence raises significant factual and legal disputes, including:

1. The Tanks Were Not Defective (Exhibit CD2 – Independent Expert Report)
   • An independent expert has confirmed that the tanks were free from defects (Skeleton para 4.2.2).
   • This contradicts the Claimant’s allegations and is a triable issue.
2. Claimant’s Failure to Follow Installation Guidelines
   • Industry-standard installation procedures were not followed, which likely caused the damage.
   • This is a factual issue that requires witness and expert testimony at trial (Skeleton para 4.2.2).

Given these unresolved factual disputes, striking out the Defence would be inappropriate and unjust.

Third Submission

My final submission concerns the necessity of a full trial due to the factual complexities involved. The Court in ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 (Skeleton para 4.3.2) emphasized that where serious factual disputes exist, a case should proceed to trial.

Paragraph Reference in Skeleton Argument: 

White Book Reference: CPR 24.2, White Book (2024), Volume 1, para 24.2.5 – ‘Factual disputes requiring trial’

In this case, several factual issues require full judicial consideration, including:

1. The Condition of the Tanks Upon Delivery (Exhibit TJ1)
   • The Defendant asserts that the tanks were in good condition at delivery (Skeleton para 4.3.1).
2. The Reliability of the Claimant’s Expert Report (Exhibit TJ2)
   • The credibility of the report from a competitor supplier is in question (Skeleton para 4.3.3).
3. Whether the Claimant’s Alleged Loss Was Self-Inflicted
   • The Claimant introduced high-value fish without testing the tanks, despite industry best practices (Skeleton para 4.3.4).

Given these disputes, the matter should not be resolved summarily.

Conclusion & Relief Sought

In conclusion, I respectfully submit that the Claimant’s application should be dismissed because:

• The Defendant has a real prospect of successfully defending the claim.
• The case involves genuine factual disputes that necessitate a trial.
• The Defence raises reasonable grounds, making summary judgment or striking out inappropriate.

Accordingly, I seek the following reliefs:

1. That the Claimant’s application for summary judgment under CPR 24.2 be dismissed.
2. That the Claimant’s application to strike out the Defence under CPR 3.4(2)(a) be dismissed.
3. That the Defendant be awarded costs for responding to the application.

Unless the Court has any further questions, those are my submissions.

Brief Summary of the Assessment Requirements

This assessment required the student to demonstrate competency in written and oral legal advocacy through the preparation and presentation of a skeleton argument and oral submissions in response to a civil procedure application. The task focused on opposing a Claimant’s application for summary judgment under CPR 24.2 and, alternatively, an application to strike out the Defence under CPR 3.4(2)(a).

Key pointers to be covered in the assessment included:

• Identifying and applying the correct Civil Procedure Rules (CPR)

• Structuring a clear, persuasive skeleton argument suitable for court use

• Analysing and applying relevant case law to support submissions

• Demonstrating understanding of factual disputes, evidentiary issues, and expert evidence

• Preparing oral submissions suitable for a 15-minute advocacy presentation

• Anticipating and responding to judicial questioning

• Seeking appropriate relief and costs

The assessment also required alignment with the stated learning outcomes, particularly in relation to client advocacy, oral argument, questioning techniques, and persuasive legal reasoning.

Academic Mentor’s Step-by-Step Approach to the Assessment

The academic mentor guided the student through the assessment using a structured, practitioner-focused approach, ensuring both legal accuracy and advocacy clarity.

Step 1: Understanding the Procedural Context

The mentor first ensured the student fully understood the nature of the application before the court. This involved breaking down the legal tests under CPR 24.2 (summary judgment) and CPR 3.4(2)(a) (strike out), with reference to the White Book and leading authorities such as Swain v Hillman and Three Rivers v Bank of England. This step ensured the student could clearly identify what the Claimant needed to prove and where the Defence could successfully resist the application.

Step 2: Identifying the Core Defence Themes

The mentor then helped the student identify the strongest and most persuasive defence arguments. These were narrowed to four central themes:

• contractual exclusion of liability,

• unreliability of a competitor’s expert report,

• contributory negligence by the Claimant, and

• independent expert evidence supporting the Defendant.

This ensured the submissions remained focused and avoided unnecessary detail.

Step 3: Structuring the Skeleton Argument

The mentor guided the student in drafting a logically ordered skeleton argument, beginning with an introduction and Defendant’s position, followed by clearly defined issues, legal framework, analysis of evidence, and relief sought. Emphasis was placed on concise drafting, numbered paragraphs, and explicit references to exhibits and authorities, mirroring professional court practice.

Step 4: Integrating Case Law and Authorities

The student was supported in selecting appropriate case law and learning how to apply it persuasively rather than descriptively. Each authority was linked directly to the relevant CPR provision and factual issue, reinforcing the argument that the matter was unsuitable for summary disposal.

Step 5: Developing Oral Submissions and Advocacy Skills

The mentor then assisted the student in converting the written argument into a structured oral presentation. This included drafting an opening, signposting submissions, managing time effectively, and preparing responses to likely judicial questions. Particular attention was paid to tone, clarity, and courtroom etiquette.

Step 6: Review and Refinement

Finally, the mentor reviewed the complete assessment solution, ensuring coherence between the written skeleton argument and oral submissions, accuracy of legal references, and clear alignment with the learning outcomes.

Final Outcome and Learning Objectives Achieved

The final outcome was a professionally structured skeleton argument and oral advocacy submission that clearly demonstrated the Defendant’s real prospect of successfully defending the claim and the necessity of a full trial. The student effectively applied procedural law, analysed disputed evidence, and presented persuasive written and oral arguments.

Through this process, the following learning outcomes were achieved:

• LO 1: The student demonstrated an understanding of client representation by advancing arguments aligned with the Defendant’s factual and contractual position.

• LO 2: The oral submissions reflected effective advocacy techniques used by legal practitioners in court hearings.

• LO 3: The student showed the ability to distinguish appropriate forms of argument and questioning when responding to interlocutory applications.

• LO 4: The student constructed and delivered persuasive legal arguments tailored to a judicial audience, supported by authority and evidence.

Overall, the assessment demonstrated the student’s ability to integrate legal knowledge, advocacy skills, and professional judgment in both written and oral contexts, meeting the assessment requirements to a high academic and practical standard.

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