47. Having carefully read the statements I accept the evidence put before me from the Claimants’ witnesses. I have not found sloppiness, internal inconsistency or exaggeration in the way they were written or any reason to doubt the evidence provided.
The Law
Summary Judgment
48. Under CPR part 24 it is the first task of this Court to determine whether the Defendants have a realistic prospect of success in defending the claim. Realistic is distinguished from a fanciful prospect of success, see Swain v Hillman [2001] 1 ALL ER 91. The threshold for what is a realistic prospect was examined in ED and F Man Liquid Products v Patel [2003] EWCA Civ. 472. It is higher than a merely arguable prospect of success. Whilst it is clear that on a summary judgement application the Court is not required to effect a mini trial, it does need to analyse the evidence put before it to determine whether it is worthless, contradictory, unimpressive or incredible and overall to determine whether it is credible and worthy of acceptance. The Court is also required to take into account, in a claim against PUs, not only the evidence put before it on the application but also the evidence which could reasonably be expected to be available at trial both on behalf of the Claimants and the Defendants, see Royal Brompton Hospitals v Hammond (#5) [2001] EWCA Civ. 550. Where reasonable grounds exist for believing that a fuller investigation of the facts of the case at trial would affect the outcome of the decision then summary judgement should be refused, see Doncaster Pharmaceuticals v Bolton Pharmaceutical Co [2007] F.S.R 3. I take into account that the burden of proof rests in the first place on the applicant and also the guidance given in Sainsbury's Supermarkets v Condek Holdings [2014] EWHC 2016, at paragraph 13, that if the applicant has produced credible evidence in support of the assertion that the applicant has a realistic prospect of success on the claim, then the respondent is required to prove some real prospect of success in defending the claim or some other substantial reason for the claim going to trial. I also take into account the guidance given at paragraph 40 of the judgment of Sir Julian Flaux in the Court of Appeal in National Highways Limited v Persons Unknown [2023] EWCA Civ. 182, that the test to be applied when a final anticipatory injunction is sought through a summary judgment application is the same as in all other cases. 49. CPR part 24 r.24.5 states that if a respondent to a summary judgment application wishes to put in evidence he “must” file and serve written evidence 7 days before the hearing. Of course, this cannot apply to PUs who will have no knowledge of the hearing. It does apply to named and served Defendants. 50. But what approach should the Court take where named Defendant served nothing and PUs are also Defendants? In King v Stiefel [2021] EWHC 1045 (Comm) Cockerill J. ruled as follows on what to do in relation to evidence:
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