Reverse summary judgment: Courts reinforce the high bar for early dismissal in Professional Negligence claims

Blog written by Kevin O’Brien, Partner, and Laura Zverev, Senior Associate, from our Professional Negligence team.

Recent High Court decisions have provided useful clarification of the courts’ approach to reverse summary judgment applications, that is, where defendants seek to have a claimant’s case dismissed without trial on the basis that it has no real prospect of success.

Under CPR 24.3, summary judgment will only be granted where a party has no real prospect of succeeding on the claim or defence, and there is no other compelling reason for a trial. It is therefore a high bar. Nevertheless, in our experience, such applications are becoming more prevalent in professional negligence cases where defendants seek early resolution on issues such as limitation.

Their increased use may reflect a perception that the CPR has lowered the threshold test for granting summary judgment; that the pre-action protocols and early exchange of information allow parties to form views on the prospects of claims at an earlier stage; and that defendants see tactical value in using these applications to test the strength of a claimant’s position.

Three recent judgments in professional negligence cases illustrate how that test is applied in practice. In Evans v Hughes Fowler Carruthers Ltd, Mitchell v Leigh Day and Collingwood v Irwin Mitchell LLP, defendants’ reverse summary judgment applications were all refused. The decisions show the courts’ continued insistence that complex and fact-sensitive claims should be determined at trial rather than summarily dismissed.

Hugh James acted for the successful counter-claimant in Evans v Hughes Fowler Carruthers Ltd.

Evans v Hughes Fowler Carruthers Ltd [2025] EWHC 1224 (KB)

This High Court appeal concerned whether solicitors had a duty to advise their client that she might have a claim against them.

The solicitors had acted for the client in her divorce and financial remedy proceedings before Mostyn J. At that time, the solicitors and counsel were also representing Lady Mostyn in her divorce proceedings against Mostyn J. After the first trial concluded and a draft judgment was circulated, the solicitors discovered information which could be deemed to have been apparent bias on the judge’s part. The client was forced to seek advice from alternative solicitors on whether to seek to set aside the judgment and pursue a new trial before a different Judge. The client’s new solicitors successfully applied for the judge to be recused and the draft judgment was set aside. The court ordered that the case should be tried again, and a second trial took place approximately six to nine months later, before Moylan J in which the original solicitors again acted for the client.

In response to the solicitor’s claim for unpaid fees, the client filed a counterclaim alleging two categories of professional negligence against her solicitors:

• a failure before the first trial to advise her of the risks of continuing the proceedings before a judge against whom her legal team were acting in his divorce and financial proceedings from Lady Mostyn; and
• a failure after the recusal of Mostyn J to advise that she might have a potential claim against her legal team and that she should obtain independent advice in respect of that potential claim.

The firm applied for summary judgment, arguing there was no real prospect of establishing that such a duty had arisen or been breached in these circumstances. The first-instance judge agreed and dismissed the claim.

On appeal, Adam Johnson J overturned that decision. He held that it was reasonably arguable that, in the specific circumstances, the firm had owed a duty to advise the client that she might have a claim and should seek independent advice. The lower court had therefore been wrong to summarily dismiss those allegations on a reverse summary judgment application.

The court also found that there was a real prospect of establishing a sufficient connection between the alleged breach and the firm’s claim for unpaid fees, allowing the client’s set-off defence to proceed.

Although limitation was not directly before the court, the judge noted that there was logic to the argument that any duty to advise could have continued for so long as the claimant might have acted on that advice if it had been given.

The decision emphasises the high threshold for obtaining reverse summary judgment where issues of a solicitor’s scope of duty and breach of duty depend on the court’s determination of a particularly complex factual context of the solicitor-client relationship.

Mitchell v Leigh Day [2025] EWHC 1081 (KB)

In Mitchell, the claimant pursued a negligence claim against her former solicitors following the loss of a high-value clinical negligence action. The defendant firm sought summary judgment on the basis that the claim was statute-barred.

The High Court dismissed the application, holding that the question of when “damage” occurred for limitation purposes was inherently fact-sensitive and unsuitable for summary determination. The court observed that in professional negligence cases, especially those arising from complex underlying litigation, pinpointing when measurable loss was suffered usually requires a detailed examination of the evidence.

This case reinforces that summary disposal will rarely be appropriate on the ground of limitation, where determination of the limitation arguments in a professional negligence case depends on the court’s assessment of a factual matrix which is disputed and complex.

Collingwood v Irwin Mitchell LLP [2025] EWHC 1570 (Ch)

Collingwood also arose from a defendant’s reverse summary judgment application based on limitation. The claimant alleged that her former solicitors had failed to issue proceedings within time in relation to a pension-related claim.

The court reaffirmed the Easyair principles, that summary judgment should only be granted where the claim has no real prospect of success and there is no compelling reason for a trial. Here, determining limitation required expert and factual evidence on when actual loss was suffered and whether breaches were distinct or continuous. The issues were too complex to be decided summarily.

Together with Evans and Mitchell, the decision underscores the point that the court will not engage in a “mini-trial” when dealing with reverse summary judgment. If proper evaluation of the issues requires weighing competing accounts, interpreting technical evidence, or analysing a complicated factual background, the application will almost invariably fail.

The judgment demonstrates that, although reverse summary judgment applications remain a legitimate procedural tool, they will not succeed where key issues depend on factual analysis.

Judicial Trends and Practical Observations

Taken together, these decisions highlight:

• Prevalence, not permissiveness: Reverse summary judgment applications are being made more frequently, particularly in professional negligence claims, but the courts continue to apply the long-established high bar under CPR 24.3. Their increasing popularity may also reflect the tactical attraction for defendants of stress-testing the claimant’s case at an early stage, despite that high bar.
• Fact sensitivity: Issues such as limitation, breach and scope of duty are rarely suitable for summary determination.
• Procedural discipline: The courts are scrutinising applications carefully to ensure they are proportionate and genuinely capable of resolving discrete issues.

The cases collectively reinforce the structural tension between disposing of issues swiftly in the interests of proportionality and ensuring that justice is done. Judges remain clear that the latter cannot be compromised: unless the absence of a real prospect of success is demonstrable without undertaking a fact-finding exercise, the matter proceeds to trial.

The result is not a shift in the law but a reaffirmation of principle: only cases that have no real prospect of success will be struck out summarily.

Practical Implications

For claimants and defendants alike, these cases offer clear procedural guidance:

• Expect greater use of reverse summary judgment applications. Defendants will likely continue to deploy them as a tactical step, but they should do so only where the issues are genuinely clear-cut.
• Anticipate evidential depth. Complex professional negligence claims involving complex questions of limitation or scope of duty will almost invariably proceed to trial.
• Recognise the cost implications. Unsuccessful applications carry the risk of a significant cost exposure; where factual disputes remain live, the courts are unlikely to grant early judgment.

Conclusion

The recent cases of Evans, Mitchell and Collingwood reaffirm that while reverse summary judgment applications have, in our experience, become more common in professional negligence cases, success remains elusive. The courts continue to demand rigorous adherence to the high threshold in CPR 24.3, ensuring that claims which depend on factual or evaluative judgments proceed to full trial.