Civil Litigation: Summary Judgment

What is Summary Judgment?

Summary judgment is a procedure used in civil litigation. Where summary judgment is granted, the proceedings are brought to a prompt end without the need for a full trial.

An application for summary judgment is usually made by a claimant where no defence has been filed, or the claimant believes 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 summary judgment can also be made by defendants if they believe the claim filed against them has no real prospect of success (CPR, r24.2(a)(i).

An application for summary judgment effectively puts the proceedings on hold. The court must, therefore, be satisfied that there is no other compelling reason why the case should be disposed of at trial.

When is summary judgment available?

The court has the power to grant summary judgment against the claimant in any type of proceedings. In addition, the court has the power to grant summary judgment against the defendant in most proceedings – except for those for possession of residential premises; and proceedings for an admiralty in rem claim.

What is the ‘test’ for summary judgment applications?

The test for allowing an application for summary judgment is whether the applicant(the claimant or the defendant) has a case that the other side has no real prospect of success. The prospect must be real and not false, fanciful or imaginary. The burden of proof rests with the applicant to show that the other side has no real prospect of success, and that there is no other compelling reason for a trial.

If the applicant can satisfy this burden, the other side must then demonstrate that there is a real prospect of success or some other reason to go to trial. Such compelling reasons for trial may include, for instance, where a party has been unable to contact an important witness.

What is the procedure for obtaining summary judgment?

A claimant can apply for summary judgment once the defendant has filed either an acknowledgment of service, or a defence, or if the court otherwise grants permission. A defendant can only apply for summary judgment after it has filed either an acknowledgement of service, or a defence.

Where a summary judgment hearing is set, the respondent to the application (or both parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days’ notice of the date allocated for the hearing, and the issues to be decided at the hearing.

The respondent must file and serve any evidence in response to the application at least 7 clear days before the hearing. The applicant can then respond with further evidence of its own by filing and serving it at least 3 clear days before the hearing.

Where the court has fixed a hearing for summary judgment in the absence of an application by either party, all parties must file and serve their evidence at least 7 days before the hearing. If one party wants to respond to their opponent’s evidence, they must file and serve their evidence at least 3 days before the hearing date.

What happens at the hearing?

The hearing will not be a ‘mini-trial’ on the facts, rather, the court will hear the parties’ arguments as to whether summary judgment should be ordered. The court’s role is to decide whether a case is one where there is no real prospect of success, and can be disposed of summarily.

What types of orders can the Court make?

The court has the power to make a wide range of orders following an application for summary judgment, including:

  • Ordering judgment in favour of the claimant
  • Striking out or dismissing the claim
  • Dismissing the application for summary judgment
  • Granting a conditional order

A conditional order requires one party to pay a sum of money into court, or to take a specified step in relation to their claim/defence, and provides that that party’s claim will be dismissed or his statement of case struck out in the case of non-compliance. Conditional Orders are appropriate where there is a grey area between granting summary judgment and dismissing the application.