Civil Litigation: Summary Judgment

What is Summary Judgment?

Summary judgment is a procedural process used in Civil litigation and is granted in order to achieve active case management.

Summary judgment applications are usually made by claimants where they believe that the defence filed by the defendant has no real prospect of success (CPR, r24.2(a)(ii)). However, summary judgment is not exclusively granted in favour of claimants, applications for such can be made by defendants if they believe that the claim filed against them has no real prospect of succeeding (CPR, r24.2(a)(i). The court must also be satisfied that there is no other compelling reason why the case should be disposed of at trial (CPR, r24.2(b)).

What is the ‘Test’ for Summary Judgment Applications?

The test for summary judgment is whether the respondent (either the claimant or the defendant for the purpose of a summary judgment application) has a case with a real prospect of success i.e. some chance of success. The prospect must be real and not false, fanciful or imaginary. The primary burden of proof rests with the applicant to demonstrate that the respondent has no real prospect of success and that there is no other compelling reason for a trial. If the applicant is able to satisfy this burden, the respondent must then demonstrate that there is a real prospect of success or some other reason for trial. Other compelling reasons for a trial could include instances where a party has been unable to contact an important witness.

Types of Proceedings Summary Judgment is and is not available.

The court has the power to grant summary judgment against a claimant in any type of proceedings (CPR, r24.3(1)). The court also has the power to grant summary judgment against a defendant in any type of proceedings except proceedings for possession of residential premises (CPR, r24.3(2)(a)) and proceedings for an admiralty in rem claim (CPR, r24.3(2)(b)).

Procedure for a Summary Judgment Application.

  • A claimant may only apply for summary judgment after the defendant has filed either an acknowledgment of service (CPR, r24.4(1)(a)) or a defence (CPR, r24.4(1)(b)) unless the court grants permission.

  • Where a summary judgment hearing is fixed the respondent or both parties where the hearing is fixed of the courts own initiative must be given at least 14 days notice of the date allocated for the hearing and the issues that will be decided at the hearing. (CPR, r24.4(3))

  • The respondent must file and serve any evidence in reply to the application at least 7 clear days before the hearing. (CPR, r24.5(1)). If the applicant wishes to reply to the respondent’s evidence then any further evidence must be filed and served at least 3 clear days before the hearing. (CPR, r24.5(2)).

  • In cases where the hearing is fixed by the court on its own initiative all parties must file and serve their evidence at least 7 days before the hearing (CPR, r24.5(3)(a)) and if one party wants to respond to their opponents evidence they must file and serve their evidence at least 3 days before the hearing (CPR, r24.5(3)(b)).

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