The appellant, Chan U Seek, had brought a claim for payment of commission in respect of two contracts entered into by the defendant in 1995 and 1996 with the Indonesian Ministry of Defence. The deputy master had struck out and dismissed the claim under CPR 3.4(2) and CPR Part 24 partly on the grounds of limitation (on the basis that any commission fell due when the contracts were entered into and the 1995 contract was more than 6 years before 20 July 2001, when the appellant commenced proceedings), and partly on the grounds that, looked at globally, the whole claim stood no real chance of success (on the basis that there was a break in the chain of causation between the introductions arranged by the appellant in the early 1980s and the conclusion of the contracts in the mid-1990s).
Chan U Seek argued on appeal (1) that it was a matter of construction of his contract with the defendant when the commission fell due and that this needed to be investigated at trial, and (2) that contracts of the nature entered into by the defendant did take years to finalise and that the break in the chain of causation was not made out.
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.