LPC: CIVIL LITIGATION CHAPTER 8 PART 3

PART 3 – SUMMARY JUDGMENT

3. Summary judgment (CPR 24)

3.1 Nature
Summary judgment enables the court to dispose of weak cases or issues
without the need for a full trial. This enables the courts to deal with weak
cases/issues proportionately and expeditiously, in line with the overriding
objective.

It is available in most types of proceedings (although there are certain

exceptions, as set out in CPR 24.3).

The court’s power to give summary judgment in CPR 24 is related to the

court’s power to strike out in CPR 3.4. Generally, strike out focuses on the
statement of case and covers cases which do not amount to a legally
recognisable claim or defence, whereas summary judgment covers cases
which are weak on the facts. However, there is considerable overlap between
the two provisions and applications are often made for summary judgment and
strike out in the alternative.

An application can be based on a point of law (including the question of

construction of a document), the evidence which can reasonably be expected
to be available at trial (or the lack of it), or a combination of both of the above
(24 PD 1.3).

3.2 Who can apply?

Either party may make an application for summary judgment or the court may
also fix a summary judgment hearing of its own initiative (e.g. see the court’s
duty in CPR 1.4(2)(c) and the court’s power to make an order of its own
initiative in CPR 3.3).

3.3 When to apply?

If the claimant is applying, the defendant must have indicated its intention to
defend the claim by serving either an acknowledgement of service or a
defence, unless the court gives permission (CPR 24.4(1)). Some exceptions to
this are set out in 24 PD 7.

If the claimant applies for summary judgment before the defendant has served
a defence, the defendant need not file a defence before the hearing as the
time for serving the defence is automatically extended until after the hearing
(CPR 24.4(2)).

If the defendant is applying for summary judgment against a claimant, the

defendant does not have to file either an acknowledgment of service or a
defence and can apply for summary judgment at any time after proceedings

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have been commenced. The claimant cannot obtain judgment in default until
the summary judgment application has been disposed of (CPR 12.3 (3)).

The claimant/defendant should ideally apply before or when filing directions

questionnaires (so unnecessary costs are not incurred) (26 PD 5.3(1)); the
questionnaire specifically asks whether the party intends to make such an
application. If a party intends to make such an application, the court will not
allocate the matter to a track before the summary judgment hearing.

3.4 Grounds
The applicant must satisfy two limbs (deriving from CPR 24.2):

1. The claimant has no real prospect of succeeding on the claim or

issue;

OR

The defendant has no real prospect of successfully defending the

claim or issue;

AND

2. There is no other compelling reason why the case or issue should

be disposed of at trial.

‘No real prospect’

Real means not fanciful, imaginary or false, e.g. a claim without substance or
where it is clear beyond question that the statement of case is contradicted by
all the documents/material on which the statement of case is based. It is
sufficient for the respondent to show some prospect, i.e. some chance of
success.

A case may have a real prospect even if it is improbable. In defending a

summary judgment application you do not have to show the case will probably
succeed. If the prospect is improbable, a conditional order may be made (see
below).

Swain v Hillman [2001] 1 All E.R. 91

Lord Woolf said ‘no real prospect’ did not need amplification. The words
meant whether there was a realistic (as opposed to a fanciful) prospect of
success. The words did not mean real and substantial.

International Finance Corp v Utexafrica SPRL [2001] C.L.C. 1361

The respondent does not have to show that their case will probably succeed at
trial, but there must be a real prospect of the defence or claim succeeding.
The word ‘real’ means better than merely arguable.

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‘A summary judgment hearing is not a mini-trial’

Swain v Hillman [2001] 1 All E.R. 91

The hearing of a summary judgment application is not a mini trial but that does
not mean the court has to accept everything said by the parties. In some
cases it may be clear there is no substance to the factual assertions made by
a party. The court must look at the merits to the extent necessary to determine
whether there is a real prospect of success.

The notes to CPR 24.2 in the White Book provide guidance on how the court
is to make an assessment at a summary judgment hearing without conducting
a mini trial.

‘No other compelling reason’

Establishing that the other side has no real prospect of succeeding will not
necessarily result in a successful summary judgment application. You must
also show that there is no other compelling reason for a trial.

Compelling reasons include: the case being highly complex; there being a
significant dispute on the facts; the defendant needing more time to
investigate the claim; the need for expert evidence to be adduced; there being
difficult questions of law; there being questions of foreign law; or if the case
involves multiparty litigation. Other reasons include where the claimant’s case
is not “plain and straightforward”, where it would be fundamentally unjust to
terminate a case before there was scrutiny of key documents and in cases
where the defendant may have a right to trial by jury, e.g. fraud.

A set-off or counterclaim is not a reason why the case should be dealt with at
trial. In such a case, the court is likely to give summary judgment but state that
it is not enforceable until the counterclaim or set-off has been heard.

3.5 Procedure
Application notice and evidence

The documentation required for making an application for summary judgment

is the same as for any other interim application to court (see part 1 of this
chapter).

In addition, however, you should note that the application notice must include
a statement that it is an application for summary judgment under Part 24 and
certain other information (see 24 PD 2(2)).

The application notice or the evidence contained or referred to in it or served

with it must:
1. identify concisely any point of law or provision in a document on which
the applicant relies; and/or
2. state that it is made because the applicant believes that on the evidence
the respondent has no real prospect of succeeding on the claim or
issue/or of successfully defending the claim or issue (24 PD 2(3)).

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It must also state that the applicant knows of no other compelling reason why
there should be a trial.

According to 24 PD 2(5), the application notice must also specifically direct the
respondent’s attention to CPR 24.5(1).

The evidence must state the points referred to above, but usually also gives
details of facts and documentation to show there is no real claim or defence.

Service

Note the difference to the normal rule for interim applications:

1. The application notice must be served on the respondent together with
any evidence (which must also be filed) at least 14 days before the
date fixed for the hearing (CPR 24.4(3)).
2. The respondent may file and serve evidence in response at least seven
days before the date fixed for the hearing (CPR 24.5(1)).
3. The applicant may file and serve any evidence in reply at least three
days before the date fixed for the hearing (CPR 24.5(2)).

Please see CPR 2.8 for the rules on counting time.

When setting the date for the hearing, the court will ensure that the date
allows sufficient time for the parties to serve their evidence in accordance with
the time periods described above.

Statements of Costs for Summary Assessment should also be served 24

hours before the date fixed for the hearing (PD 44).

3.6 Hearing
A summary judgment application will always be dealt with at a hearing.
Possible orders that the court may make include those set out (CPR 24 PD 5):

Judgment on the claim

If this order is made, the applicant (in this case the claimant) has succeeded.
The claim is over. The judge will usually go on to assess costs of the whole
action. The judgment may be final (if for a liquidated sum) or interim (if on
liability only).

Striking out or dismissal of the claim

If this order is made the applicant (in this case the defendant) has succeeded
and it is as if the claim never existed. However, the judge will make an order
for costs to compensate the defendant for the trouble of defending an
unmeritorious claim.

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Dismissal of the application

If the application is dismissed, the claim will continue. The judge will make a
costs order. If the judge considers the application should not have been
brought, this is likely to be an order that the applicant should pay the
respondent’s costs of the hearing in any event. The respondent will have filed
a statement of costs, and the judge will go on to assess these.

A conditional order

This order is made if the judge is minded to allow the claim to continue but is
not wholly convinced of the merits of one party’s case.

The judge may therefore order that the claim continue/defendant be allowed to
defend but on certain conditions e.g. order a sum of money to be paid into
court as a condition for continuing with the claim, or order one party to take a
specified step in relation to either the claim or defence, failing which the claim
is dismissed or the defence is struck out.

Summary judgment on an issue or issues

You will note that the wording of CPR 24.2 allows the judge/master to award
summary judgment not just on the claim but on an issue relating to the claim.
This will be considered in more detail in SGS 8.

The court might also consider making orders concerning:

1. Future case management directions

At the end of the hearing, if the claim is to continue, the court will usually direct
that the Defendant file and serve its defence by a specified date.

2. Costs

The court may make an order for fixed costs (CPR 45) or an order for costs to
be assessed by summary or detailed assessment. In all cases the court has
power to award costs other than fixed costs.

An order made at a summary judgment hearing may be set aside if it is made

in the absence of one party.

Further reading

CPR 23, PD23A, CPR 24 and PD24.

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