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.

  • There is no other compelling reason for a trial.

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. (For further information, see Practice note, Summary judgment: an overview: Excluded proceedings (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)).

 

Points of caution

 

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, Summary judgment: an overview, Timing for service of application and for response and other evidence. (www.practicallaw.com/9-203-1180) For information on service and what it involves, 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.

Note that it is important to compute time correctly (CPR 2.8).

 

What is the procedure for applying for Summary Judgment?

Practical points

  • For cases where the defence is received on or after 1 April 2013, 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 or else 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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