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What is summary judgment and how does it work?

A summary judgment can be an effective way of resolving disputes at an early stage without the need to go to a full trial – which can be a long and expensive process. In this article, our business dispute solicitors will explain what summary judgment is, how it works and some practical points to keep in mind if you think this might be a good option for your business.

What is summary judgment?

A summary judgment is a procedure which any of the parties to a claim (you or your opponent) – or the court – can use to dispose of all or part of a case without a trial.

The main factors that will be taken into account by the court are whether:

  • A claim, issue or a defence to a claim or issue has no real prospect of success
  • And there is no other compelling reason for a trial

It’s worth pointing out here that, if you’re the party who wants to obtain summary judgment then the burden of proof is on you to prove the above.

What can an application for summary judgment be based on?

An application for summary judgment may be based on:

  • A point of law, or
  • The evidence (or lack of it) which can reasonably be expected to be available at trial, or
  • A combination of the above.

It’s important to highlight here the fact that the court can simply decide to direct that a claim or issue should be summarily dismissed but this is rare.

In what circumstances is summary judgment available?

If you’re the defendant in a dispute, you can obtain a summary judgment against a claimant in any type of proceedings. But if you’re a claimant involved in certain types of dispute (for example, residential possession proceedings) then you may not be able to obtain summary judgment – it is best to take legal advice if you’re unsure about this.

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What time frames are involved in an application for summary judgment?

The table below sets out the relevant time frames you should be aware of, depending on your role in the application.

ActionTimings
Application made by a claimantA claimant can make an application for summary judgment after an acknowledgment of service or defence has been filed, unless the court gives permission, or a Practice Direction provides otherwise.
Application made by a defendantA defendant can apply for summary judgment at any time, but typically this is done at the first Case Management Conference (CMC).
In a Part 8 claimAny application for summary judgment should be made after acknowledgment of service. If no acknowledgment is served, permission of the court is needed.
EvidenceThe applicant’s evidence should be filed and served with the application. The respondent should file and serve their evidence at least seven days before the hearing, and the applicant can file and serve evidence in reply three days before the hearing.
Summary judgment raised at the court’s initiativeUsually, a judge would raise this at the first CMC.

How to apply for summary judgement

There are a few different procedural steps involved when it comes to applying for summary judgment and it’s useful to know upfront that there will still be a court hearing where a judge will decide whether the application should be successful or not. This will still be much more straightforward than a full trial hearing, though. Here’s how it works:

If you’re the claimant in the case, then you’ll have to wait for the defendant to reply to your claim by way of filing an acknowledgement of service or defence to it. If you’re the defendant then, as mentioned above under ‘What time frames are involved in an application for summary judgment,’ you can apply at any time. Either way, it’s best to act quickly if you want to apply for summary judgment so once you formally know what your opponent’s position is, you should think about your application then.

You’ll have to attach some form of written evidence to your application and this usually takes the form of a witness statement. The key thing to think about when you’re putting together this statement will be how you can show the court that the other side’s claim or defence doesn’t have a real prospect of success and that there’s no other compelling reason for a trial. You’ll have to sign a formal declaration at the end of the statement verifying that its contents are true and it’s usual practice to attach a draft order, i.e. another document which sets out the order you’d ideally like the court to make.

The next thing you’ll need to do is issue the application at the court overseeing your dispute and pay a fee for this. The court will fix a hearing date – usually for less than one business day in length. Make sure you serve the evidence referred to above on your opponent too. They will then have the opportunity to respond – they’ll have up until 7 days before the hearing date to do this and they’ll also be expected to provide evidence.

If you’re the applicant, you’re allowed to lodge further evidence after you’ve seen your opponent’s (up to 3 days before the hearing) and it’s then up to you to provide the court with a bundle of documents that have been agreed with the other side. Lastly, the day before the hearing, both you and your opponent will have to submit ‘skeleton arguments’ (concise summaries) of your cases, along with details of any costs you’re both claiming. Once all of this has been done, everything is ready for the judge to decide what to do with the application on the day of the hearing itself.

Advantages of a summary judgment

There are some main advantages to applying for summary judgment. These are:

  • It can bring a dispute to an end at an early stage, which means it’s faster and more cost effective than going to trial if you’re successful as the applicant.
  • The court won’t hear any oral evidence from anyone from your company at a summary judgment hearing, so you or other staff members won’t have to attend as witnesses, which is different to a full trial.
  • Even if your application isn’t successful, there might be a tactical benefit because the other party will have had to share their position and evidence with you and the court early on.

Disadvantages of a summary judgment

There are of course some disadvantages to summary judgment too. The key ones are:

  • The other party only has to show the court that they ‘may’ succeed at trial for an application of summary judgment to be dismissed by the court. It’s quite a high bar to prove that the other party has no real prospects of success or that there’s no other compelling reason for a trial so summary judgment applications are not without risk.

If your application is unsuccessful, it’s likely that the court will order you to pay your own costs as well as those of the other party. We’ll talk about costs in some more detail below.

Who pays costs in a summary judgment?

The court has a wide discretion when it comes to costs. As we’ve mentioned, what usually happens is that if you lose the summary judgment application, you’ll probably be ordered to pay the other party’s costs and you will have of course incurred your own costs in making the application.

If you’re successful in your application, the court may make an order for fixed costs in cases where, for example, your claim is for a specified sum of money. These fixed costs are set out in the CPR. Otherwise, the court might use its discretion as to how much it orders in your favour from the other party, taking into account whether they’ve behaved unreasonably and other case-specific factors.

What happens if a summary judgment application is dismissed?

In this case, the judge will give directions for the next steps to be taken in the proceedings and as such the proceedings will continue, possibly to a full trial.

Can an order for summary judgment be set aside or varied?

Yes. The court has general case management powers to set aside or vary the terms of an order for summary judgment, either in response to an application made by one of the parties or of its own initiative. Usually this happens when there has been some kind of injustice done to one of the parties or there’s another reason to vary the order.

Can a party appeal a summary judgment?

An unsuccessful party can appeal a summary judgment, but permission is required. When the judge makes their order in the summary judgment hearing, permission to appeal can be requested orally at that point, or it can be made to the appeal court in an Appeal Notice. If the order was made by a master or a district judge, the appeal is usually to a High Court judge. If the order was made by a High Court judge, the appeal is made to the Court of Appeal. 21 days is normally the timeframe for filing an Appeal Notice, unless the lower court makes a different order.

It's important to know that permission to appeal will only be given when the court believes that the appeal would have a real prospect of success or there’s some other compelling reason for the appeal to be heard.

Points to be aware of before applying for summary judgment

There are a few considerations you should think about when deciding whether to go ahead and apply for summary judgment. These include the following:

  • If you’re a claimant and your opponent has challenged the court’s jurisdiction, you should usually wait until the outstanding challenge has been resolved.
  • Making a summary judgment application could result in delay and additional costs. This is because it’s usually the case that, until the application has been heard, proceedings are suspended for other purposes. As a rule of thumb, unsuccessful applications are likely to lead to unfavourable orders against the applicant.
  • Bearing this risk in mind, it’s worth knowing that, even if the application is unsuccessful, the application itself may bring about a tactical advantage and save time. This is because the other side will have been forced to set out their position and produce their evidence at an early stage.
  • A court may not grant summary judgment if a defendant needs more time to investigate the claim or the case is extremely complex.

Summary judgment applications: Final points to consider

There are several additional, practical factors we would advise you to think about in relation to a summary judgment application. These can be summarised in the final set of bullet points:

  1. If you want to avoid your case being allocated to a particular track prior to a summary judgment hearing (except in the Commercial or Technology & Construction Court where allocation to the multi-track is automatic), you should lodge the application before completing the Directions Questionnaire (DQ). State in the DQ that the application for summary judgment is lodged and request that allocation does not take place before the hearing.
  2. Ensure that you comply with any relevant pre-action protocol, otherwise a judge may refuse to consider an application before a defence has been filed (or the time for doing so has expired).
  3. Be concise when you’re preparing the evidence in support of your application. There is little point in trying to second guess what the other side will say in response: you will have an opportunity to reply to whatever they raise.
  4. Bear in mind that a summary judgment application shouldn’t be used as a ‘mini trial’ of issues. Remember, it’s not a procedure designed when complex legal or factual issues are involved, and there must not be real and genuine issues of fact that ought to be resolved at a trial. The wider the factual dispute, the greater the chance the judge will rule that there needs to be a full trial.
  5. If you’re the defendant in the proceedings, check whether there are any documents or facts known which might provide you with a complete or partial defence to the claim and which are disclosable at trial stage. In this scenario, the claimant shouldn’t be making an application for summary judgment but the onus will be on the defendant to show that disclosure is required from the claimant.

We understand that there’s a lot to think about in deciding whether to make – or how to respond to – an application for summary judgment. Our specialist team of business dispute solicitors are available to provide guidance and support at any stage of the process.


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