The judge agreed that both issues needed to be investigated at trial. He acknowledged that the appellant's case was very weak, but considered that it could not be established without embarking upon a mini-trial that it was so weak that it stood no real chance of success.
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The defendant relied upon proportionality to try and stretch the scope of the established test for a strike out. The judge rejected this on the basis that it could not be the court's role to stifle a claim merely because it appeared, at the interlocutory stage, to be very weak. This decision must be taken as a cautionary note against the reflex action of seeking a strike out immediately upon being served with an implausible claim. The claim must have no real chance of success, not merely be highly unlikely to succeed. In this case, there were factual scenarios that could support the appellant's case if established, and this was enough to allow his claim to proceed.