Summary Judgment

Question 1

What CPR provision governs Summary Judgment?

Answer 1

CPR Part 24

Question 2

What is summary judgment?

Answer 2

Summary judgment is where a party’s case is weak, and so the other party applies for the case to be judged summarily (i.e. to bring it to an early conclusion).

Question 3

When may the court give summary judgment on either a whole claim or a particular issue?

Answer 3

The court may give summary judgment if:

1. It considers that:
   (a) the claimant has no real prospect of succeeding on the claim; or
   (b) the defendant has no real prospect of successfully defending the claim; and
2. There is no other compelling reason why the case should be disposed of at trial.

Claimant: has to prove both that the defendant has no real prospect of successfully defending the claim and that there is no other compelling reason why the matter should proceed to trial.

Defendant: only has to succeed in preventing the claimant from proving one aspect to ensure the dismissal of the application for summary judgment.

Question 4

What are some examples of compelling reasons why the case should be disposed of at trial?

Answer 4

1. To allow time for further investigation of the matter
2. Complex or technical evidence is required (expert need to be instructed)
3. The disputed issue requires oral evidence, in which case witnesses will need to be gathered

Question 5

What is the procedure for applying for summary judgment?

Answer 5

1. The applicant files and serves Form N244, usually with a supporting witness statement, at least 14 days before the hearing.
2. The respondent files and serves their own evidence at least 7 days before the hearing.
3. The applicant may file and serve further evidence at least 3 days before the hearing.

Question 6

What are the possible orders a judge can make?

Answer 6

1. Judgment on the claim - the claimant succeeded in their application for summary judgment and the matter will proceed to enforcement.
2. Dismissal of the claim - defendant succeeded in their application to dispose of the claimant’s claim and the case comes to an end.
3. Application is dismissed - applicant has failed to bring the case to an early conclusion and it will now proceed towards trial.
4. A conditional order - application has not been granted, but neither has the respondent succeeded in having it dismissed - neither side has one.

Conditional order will be made where the court concludes it is possible, but not probable, that the claim or defence may succeed.

The party will be allowed to continue with the litigation, provided they pay a sum of money into court or take a specified step in relation to their claim - ensure that the party is genuine in their desire and ability to pursue the matter and, in the case of the defendant, they are not merely delaying payment.

Question 7

What are the possible costs orders that a judge could make?

Answer 7

1. Where claimant succeeds in obtaining summary judgment for a specified sum, court may award fixed costs under part 45.

Open to claimant to request a higher figure as their costs usually exceed the fixed costs, and to ask for summary assessment of the costs.

2. If a claimant is awarded summary judgment in an unspecified claim, usual rule applies so that winner (claimant) is granted their costs.
3. If defendant secures summary judgment so the entire claim is struck out, court normally will order claimant to pay defendant’s costs for the whole claim (subject to summary assessment).
4. if the application is dismissed, proceedings will continue and the unsuccessful party will pay the successful party’s costs of the summary judgment in hearing.
5. If a conditional order is made, the usual order will be for costs in the case.