Civil litigation FAQs: summary judgment

What is summary judgment?

The summary judgment process is the means by which the court can determine liability at an early stage in proceedings without costing the parties the time and expense involved in proceeding to a full trial. Either party can make an application for summary judgment or a court can list a hearing of its own initiative (although this is rare in practice). Where a defendant applies for summary judgment this is sometimes called ‘reverse summary judgment’.

Summary judgment can be sought on the whole of claim (which is normally the case) or an issue I the claim.

Until a summary judgment application is heard, proceedings are suspended from going further.

What are the grounds for summary judgment?

Under rule 24.3 of the Civil Procedural Rules (‘CPR’), the court can give a summary judgment on either the whole of a claim or a particular issue in a claim if:

It considers the party has no real prospect of succeeding on the claim, defence or issue; and
There is no other compelling reason why the case or issue should be disposed of at trial.

The burden of proof is on the applicant, who must show that the other party has no real prospect of success at trial and that there is no other compelling reason why the case or issue should be dispose of at trial.

The court will look at how parties have pleaded their respective cases and examine the way in which they state their case at the hearing and no further. A hearing of summary judgment is not a mini-trial and so if any disclosure or cross-examination is required the matter should normally proceed to trial.

What does it mean for there to be ‘no real prospect of success’?

Summary judgment should be granted in circumstances where the claim is ‘merely fanciful, imaginary, unreal or intrinsically unrealistic’. In other words, the court does not apply the balance of probabilities test to the respondent’s pleaded case, but determines whether the respondent has a realistic, arguable case.

What does ‘no other compelling reason why the case or issue should be disposed of at trial’ mean?

Other compelling reasons can include matters of public interest or that the respondent may require further investigation into a matter.

A matter may not be suitable for summary judgment if there are complicated and technical aspects of the dispute that can only properly be understood if the normal procedural steps are taken, evidence is given at full trial and is subject to cross-examination.

It is important to remember that the applicant must demonstrate both issues are present in the respondent’s case.

When can you make an application for summary judgment?

Generally, a claimant cannot obtain summary judgment in proceedings for possession of residential property against a mortgagor, tenant or contract-holder, or a former tenant or former contract-holder holding over with protected occupancy. A defendant can obtain summary judgment in any proceedings.

A claimant cannot apply for summary judgment until the defendant has filed an acknowledgment of service or a defence unless the court has given permission otherwise. Notably, a claimant can apply for summary judgment after an acknowledgment of service has been filed, but before a defence is served.

If a claimant applies for summary judgment before the defendant files a defence, the defendant does not need to file the defence until after the application has been heard.

A defendant is able to apply for summary judgment at any point. However, it is important to note that an application normally should be made without delay and generally before/at the time of filing the directions questionnaire.

As mentioned above, summary judgment is not suitable to deal with complex matters of fact, but it can be well suited to more straightforward matters, particularly a case can be determined by reference to a limited number of documents and/or where there is no factual dispute. In these situations, there is caselaw that says the court should normally ‘grasp the nettle’ and try to determine the claim.

How does one respond to an application for summary judgment?

A respondent to a summary judgment application must be given at least 14 days’ notice of the date of the hearing and be informed of the issues that are proposed to be decided on by the court. This is done by the service of an application notice with supporting evidence. The response will have the opportunity to file evidence in response to an application.

What are the potential outcomes from a summary judgment hearing?

If a claimant’s application succeeds, then judgment will be entered in their favour. This will normally include damages in a claim for a fixed sum. If the claim is for damages to be assessed and/or non-monetary relief (e.g. an injunction) is being sought then this issue may be dealt with at a separate hearing.

If a defendant’s application succeeds, then the claim will be dismissed.

If the determination ends the claim, then the unsuccessful party will normally be ordered to pay the successful party’s legal costs (although this rule does not apply in low value claims).

If an application for summary judgment fails, then the unsuccessful applicant will normally be ordered to pay the respondent’s legal costs of resisting the application.

Where the Court does not grant summary judgment on a whole claim it may make it on an issue and/or make a conditional order that requires a party to either pay a sum of money into court or take a particular step in relation to the claim within a certain period of time, failing which the party’s claim or defence will be dismissed.

Is a summary judgment application the same as a strike-out application?

Whilst summary judgment and strike-out applications have some similarities and are often brought at the same time they should not be confused with one another. Strike-out applications are governed by CPR 3.4 and can be made (a) if a statement of case (e.g. the Particulars of Claim or Defence) discloses no reasonable grounds for bringing or defending a claim, (b) the statement of case is an abuse of process or (c) there has been a failure to comply with a rule, practice direction or court order.

A court may also strike out a statement of case or part of it of its own motion. This, or an ‘unless order’ warning a party that its case may be struck out if it does not comply with an order/direction, is relatively common.

Where a claim or defence is struck out the practical outcome is normally the same as judgment being entered or a claim being dismissed.

Conclusion

Summary judgment can be a very useful procedure to attempt to bring the matter to a close in a more timely and cost-effective manner. However, it is important that the parties take proper consideration regarding the complexity of the dispute and the realistic arguable prospects of the other party before deciding to apply for summary judgment as otherwise it will have the opposite effect and work to delay matters and incur unnecessary costs for the applicant, including an order to pair their opponent’s costs of resisting the application.