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What is summary judgment and how does it work?

If you are involved in a dispute with another business, you may be trying to find a way to resolve matters before they reach a full trial and have come across the concept of summary judgment in your research. This guide will equip you with the key facts that you need to know about the process, broken down into handy sections so that you can find the information you need quickly.

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 are the applicant (the party who wants to obtain summary judgment) then the burden of proof (onus) is on you to prove the above.

What are the relevant court rules in relation to summary judgements?

The relevant court rules you need to be aware of in relation to summary judgment are set out in the Civil Procedure Rules (CPR). The key rules are listed below, along with links to the relevant pages of the CPR:

  • CPR 24.2 – grounds for summary judgment (as also set out above)
  • CPR 3.3(1) & (4) – where the court’s powers to make an order for summary judgment of its own initiative can be found
  • CPR 1.4 – this sets out the court’s duty to manage cases, which includes disposing of them summarily (i.e., via this process)

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.

You can find the above criteria set out in the Practice Direction (PD) to Part 24 of the CPR; specifically, at PD 24.1.3. Also, it’s important to highlight here the fact that the court can, of its own initiative, direct that a claim or issue be summarily dismissed.

In what circumstances is summary judgment available?

If you’re the defendant in the dispute in question, you can in theory obtain summary judgment against a claimant in any type of proceedings. However, if you are a claimant engaged 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 are 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

The most important points in relation to the procedural aspects of applying for summary judgment are summarised below:

  • If you are the party wishing to apply for summary judgment, you must use Form N244 and specifically stipulate on the form that the application is made under CPR 24. CPR 23 sets out the procedure that must be followed. However, if your claim is proceeding under the shorter trial schemes pilot, applications may be made under CPR 23 with some modifications.
  • If you are the applicant, you must identify the evidence (point of law or document) that you are replying on and state the grounds upon which you are making the application.
  • In terms of what to lodge at court, you should ensure that you serve enough copies of the application notice and evidence within the relevant time frame.
  • With regard to fees, you should check what the current fee for making the application is by searching online for 'EX50 – Civil and Family Court Fees'. The most up-to-date version of EX50 can be found here, and at the time of writing the fee is £255 (summary judgment is classed as an application on notice where no other fee is specified).
  • The next thing to do is to serve the application and accompanying evidence on the respondent. If you are claiming costs from them and vice versa (which would ordinarily be the case in these circumstances), the parties must serve costs schedules on each other 24 hours before the hearing.
  • Before the hearing of the application, you and the other side should exchange skeleton arguments and if you are the claimant, you are responsible for preparing a court bundle.
  • After the hearing itself, the court can decide to grant summary judgment, strike out or dismiss your claim or the defendant’s defence (depending on the situation), make a conditional order, or possibly give further directions.

Cautionary points to be aware of before applying for summary judgement

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

  • If you are a claimant and your opponent has challenged the court’s jurisdiction, generally speaking, you should wait until the outstanding challenge has been determined.
  • 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 adverse orders against the applicant.
  • Bearing the aforementioned 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 judgement applications: Practical 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 prior to 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 ultimately raise.
  4. Bear in mind that a summary judgment application should not 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.
  5. If you are 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 should not be making an application for summary judgment.
  6. Consider whether summary judgment is actually the most appropriate remedy or whether an alternative – such as applying to have a claim or defence struck out – should be used.

We understand that there is much to consider 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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