The Court in Henderson & Jones Ltd v Wilcocks Contractors Ltd & Anor [2026] EWCC 44 has reiterated the need for Defendants to produce evidence when opposing an application for summary judgment. The Judge was clear that a “bare assertion” would not suffice.

 

The background to the case

The Claimant had made an application for summary judgment and strike out of the defence. The Defendant had opposed the application, but the Judge found that the opposition lacked substance and amounted to little more than a “bare assertion”. The decision is a reminder of the importance of evidence in applications, as well as at trial.

 

The law

Summary judgment is governed by CPR 24. As per CPR 24.3, a court may give summary judgment on a “claim or issue” if:

• it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
• there is no other compelling reason why the case or issue should be disposed of at a trial.

Whether there is a real prospect of succeeding is often understood with reference to Swain v Hillman [2001] 1 All E.R. 91, in that the prospect of success should be realistic and not fanciful. A claim should therefore be more than merely arguable (ED & F Man Liquid Products v Patel [2003] EWCA Civ 472).

Examples of a ‘compelling reason’ contained within the commentary to CPR 24.3 are unlikely to neatly apply to most summary judgment applications. Whether a reason is compelling will likely depend on the particular facts of a case.

 

The decision

The Judge was highly critical of the (lack of) evidence provided by the Defendants and made particular reference to the passage of time as well as the likelihood of supporting evidence being available. The Defendants had produced witness statements, but the content therein had not been substantiated by supporting evidence.

Notwithstanding the existence of witness statements, the Judge could not surmount the lack of credibility behind the points that were asserted by the Defendants. Despite the apparent prejudice to the Defendants, the Judge found that this was outweighed by the lack of substance in their statements. The Judge could not therefore justify the matter proceeding to trial.

 

Practical guidance

The commentary at CPR 24.3.2 outlines that an application for summary judgment should not be a “mini-trial” (Swain v Hillman) but the decision in Henderson demonstrates that a Judge should go beyond accepting unevidenced assertions. The Judge highlighted the “trap” of conducting a mini-trial but could not avoid the inconsistencies in the Defendants’ statements that were not explained by supporting evidence.

When responding to an application for summary judgment the importance of supporting evidence, particularly that which can evidence what is contained in a witness statement, cannot therefore be overlooked.

The decision suggests that it is not sufficient to object to an application simply on grounds that issues exist that should be tested at trial. A respondent, it appears, must go further and evidence why the issues they raise justify a trial, not just that such issues exist.