Summary judgment: a quick guide

A quick guide to the procedure for disposing of a case by summary judgment.
PLC Dispute Resolution

What is it and when can it be used?

Summary judgment is a procedure by which any of the parties or the court can dispose of all or part of a case without a trial where:

  • A claim or issue or a defence to a claim or issue has no real prospect of success and

  • There is no other compelling reason for a trial.

(CPR 24.2)

An application for summary judgment may be based on:

  • A point of law (including a question of construction of a document).

  • The evidence which can reasonably be expected to be available at trial (or the lack of it).

  • A combination of these.

(PD 24.1.3)

Limits

A defendant may obtain summary judgment against a claimant in any proceedings. However, claimants in certain proceedings may not be able to obtain summary judgment (See Practice note, Summary judgment: an overview: Availability of summary judgment (www.practicallaw.com/9-203-1180)).

The court can direct that an application for summary judgment be made (CPR 3.3(1) and (4)).

Summary judgment is available in Part 8 proceedings although the nature of such proceedings may mean that it is not necessary (see Practice note, Summary judgment: an overview: Part 8 proceedings (www.practicallaw.com/9-203-1180)).

Preliminary points to note

  • If a defendant has challenged the court's jurisdiction, a claimant should not seek summary judgment until the outstanding challenge is determined.

  • A summary judgment application could result in delay and costs. Until heard, proceedings are suspended for other purposes. Unsuccessful applications will likely lead to adverse costs orders against the applicant.

  • Bearing the adverse costs risk in mind, remember that, even if the application is unsuccessful, it may bring about a tactical advantage and save time in that the other party has been forced to set out its position and evidence at an early stage. It certainly sends a message that the matter will be pursued or defended vigorously.

  • A court may not grant summary judgment if a defendant needs more time to investigate the claim or the case is highly complex. (see Practice note, Summary judgment: overview: Complexity (www.practicallaw.com/9-203-1180)).

  • Only in very exceptional cases will summary judgment be granted at trial

 

Where will I find the Court rules?

CPR 24 governs summary judgment.

CPR 3.3(1) and (4) contain the power of the court to make an order of its own initiative.

CPR 1.4 sets out the court's duty to manage cases, which includes disposing of them summarily.

Note 6 to CPR 3.4 in the White Book (Civil Procedure, Vol 1 (Sweet & Maxwell, 2011)) deals with the interplay between striking out and summary judgment.

 

Time periods

Claimants' applications: after acknowledgement of service or defence unless the court gives permission or a practice direction provides otherwise but there are exceptions to this rule (see PD 24).

Defendants' applications: at any time, but usually at the first Case Management Conference.

Summary judgment raised at the court's initiative: usually, it is raised at the first case management conference.

Part 8 Claim: an application for summary judgment should be made after acknowledgement of service. If no acknowledgement is served, permission is needed.

Evidence: the applicant's evidence should be filed and served with the application. The respondent should file and serve their evidence at least seven days before the hearing and the applicant can file and serve evidence in reply three days before the hearing.

For further details, see Practice note, The procedure for summary judgment: Evidence in support (www.practicallaw.com/7-583-8986) and Evidence in response (www.practicallaw.com/7-583-8986).

For information on service, see Practice note, Service of the claim form and other documents: an overview (www.practicallaw.com/3-382-5813).

The same time frame applies to court instigated applications. If the court of its own initiative wishes to consider summary judgment, it will give the parties 14 days notice and fix a hearing.

For computing time, see CPR 2.8.

 

What is the procedure for applying for Summary Judgment?

Practical points

  • To avoid allocation of a case prior to a summary judgment hearing (except in the Commercial or Technology and Construction Court where allocation to the multi- track is automatic), lodge the application before completing the directions questionnaire. State in the directions questionnaire that the application for summary judgment is lodged and request that allocation not take place prior to the hearing.

  • Comply with any relevant pre-action protocol, otherwise a summary judgment application may not be entertained before a defence has been filed or the time for doing so has expired.

  • When preparing evidence in support of an application for summary judgment, be concise. Do not anticipate the respondent’s arguments. You will have an opportunity to reply.

  • Summary judgment applications should not be used as a mini trial of issues. Assess whether the legal and factual issues raised are complex and whether there are real and genuine issues of fact which ought to be tried.

  • Consider whether there are documents or facts known which might afford a complete or partial defence to the claim and which are disclosable at the trial stage. If so, summary judgment should not be sought.

  • Consider whether summary judgment is the most appropriate remedy or whether another alternative, such as strike out, should be used. If a case is hopeless, strike out may be more appropriate.

 
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