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Nevertheless, the Working Party is respectfully of the view that there is room for
doubting whether in practice the two tests really operate differently. In none of the
cases mentioned above did the court focus on how the "real prospect of success" test
actually differs from a test requiring the defendant to show that he has an arguable
defence. Merely to say that the former test "goes further" gives little guidance. To
say that the defendant "must satisfy the court that his case, and the evidence he has
adduced in support of it, carries some degree of conviction" could just as easily be
taken to be an elaboration of the "arguable defence" test as of the "real prospect of
success" test. Such linguistic formulae pose questions of degree which are answered
in an inherently subjective manner, so that the difference, if any, between the tests,
especially when operated by different judges over a range of different cases, is fated to
remain elusive.
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