3.1 Summary judgment

Question 1

Which Part of the CPR deals with summary judgment?

Answer 1

CPR 24

Question 2

What is summary judgment?

Answer 2

CPR 24.1

a procedure by which the court may decide a claim or a particular issue without a trial.

Question 3

On what grounds can summary judgment be granted?

Answer 3

CPR 24.2
… if—
(a)
the court considers that—
(i)
that claimant has no real prospect of succeeding on the claim or issue; or
(ii)
that defendant has no real prospect of successfully defending the claim or issue; and
(b)
there is no other compelling reason why the case or issue should be disposed of at a trial.

Question 4

How does summary judgment serve the overriding objective?

Answer 4

By allowing weak claims or issues to be dealt with expeditiously and cheaply.

Question 5

What is the difference between summary judgment and strike out under CPR 3.4?

Answer 5

Strike out focuses on whether the statements of case present a legally recognisable claim or defence.

Summary judgment covers cases that are weak on their facts.

Question 6

What is the difference between summary judgment and judgment in default?

Answer 6

Judgment in default is procedural - it is a consequence of D failing to respond to the claim.

Summary judgment is concerned with the merits of the claim or defence.

Question 7

In what types of proceedings is summary judgment available against the claimant?

Answer 7

CPR 24.3(1)

The court may give summary judgment against a claimant in any type of proceedings.

Question 8

In what types of proceedings is summary judgment available against the defendant?

Answer 8

CPR 24.3(2)
…in any type of proceedings except—
(a)
proceedings for possession of residential premises against—
(i)
a mortgagor; or
(ii)
a tenant … protected [by] the Rent Act 1977 or the Housing Act 1988 and;
(b)
proceedings for an admiralty claim in rem.

Question 9

When can the claimant apply for summary judgment?

Answer 9

CPR 24.4(1)
Once D has filed—
(a)
an acknowledgment of service; or
(b)
a defence,
unless—
(i)
the court gives permission; or
(ii)
a practice direction provides otherwise.

Question 10

What if the court wishes to make summary judgment but there has been no application?

Answer 10

CPR 3.3(1)
… the court may exercise its case management powers [to make orders] of its own initiative.

CPR 1.4(2)
The court must manage cases in pursuit of the overriding objective, including
(c)
deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

Question 11

When can the claimant apply for summary judgment against the Crown?

Answer 11

CPR 24.4(1A)
In civil proceedings against the Crown, as defined in rule 66.1(2), a claimant may not apply for summary judgment until after expiry of the period for filing a defence specified in rule 15.4.
CPR 15.4(1)
The general rule is that the period for filing a defence is—
(a)
14 days after service of the particulars of claim; or
(b)
if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim.

Question 12

Is the defendant required to file a defence against an application for summary judgment?

Answer 12

CPR 24.4(2)
If a claimant applies for summary judgment before a defendant against whom the application is made has filed a defence, that defendant need not file a defence before the hearing.

[The effect of either party applying for summary judgment is to pause the normal proceedings.]

Question 13

When is the best time to apply for summary judgment?

Answer 13

25 PD 5.3(1)

A party intending to make such an application should do so before or when filing his directions questionnaire.

Question 14

When will an application for summary judgment be heard?

Answer 14

25 PD 5.3(2)
Where a party makes an application for such an order before a claim has been allocated to a track the court will not normally allocate the claim before the hearing of the application.
(3)
Where a party files a directions questionnaire stating that he intends to make such an application but has not done so, the judge will usually direct that an allocation hearing is listed.
(4)
The application may be heard at that allocation hearing if the application notice has been issued and served in sufficient time.

Question 15

What happens where the claimant has failed to comply with a Practice Direction (Pre-Action Conduct) or pre-action protocol?

Answer 15

24 PD 2(6)
Where the claimant has failed to comply with Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol, an action for summary judgment will not normally be entertained before the defence has been filed or, alternatively, the time for doing so has expired.

Question 16

What is the effect on the normal proceedings of the claimant applying for summary judgment?

Answer 16

CPR 24.4(2)
If a claimant applies for summary judgment before a defendant against whom the application is made has filed a defence, that defendant need not file a defence before the hearing.

[The effect of either party applying for summary judgment is to pause the normal proceedings.]

Question 17

What is the test for “no real prospect of success”?

Answer 17

Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch)
affirmed by the CA in
AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098; [2010] Lloyd’s Rep. I.R. 301
1.
A “realistic” not “fanciful” chance of success;
2.
Some degree degree of conviction. It must be more than merely arguable;
3.
the court must not conduct a “mini-trial”.

Question 18

Give some examples of “other compelling reasons” for refusing summary judgment

Answer 18

1.
Complexity
2.
Significant factual dispute
3.
Need for expert evidence
4.
Difficult questions of law
5.
D has a right to trial by jury (fraud)

Question 19

What are the six stages in an application for summary judgment?

Answer 19

1.
issue
2.
service
3.
evidence
4.
evidence in reply
5.
statements of costs
6.
hearing

Question 20

What must an applicant for summary judgment include with the application?

Answer 20

1.
application notice
2.
draft order
3.
evidence
4.
fee

Question 21

What must an applicant for summary judgment serve on the respondent?

Answer 21

1.
application notice
2.
draft order
3.
evidence
4.
hearing date

Question 22

When must the applicant for summary judgment serve notice on the respondent?

Answer 22

CPR 24.4(3)
Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days’ notice of –
(a)
the date fixed for the hearing; and
(b)
the issues which it is proposed that the court will decide at the hearing.

Question 23

When must the respondent file and serve evidence?

Answer 23

CPR 24.5(1)
If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must –
(a)
file the written evidence; and
(b)
serve copies on every other party to the application,
at least 7 days before the summary judgment hearing.

Question 24

When must the applicant file and serve evidence in reply?

Answer 24

CPR 24.5(2)
If the applicant wishes to rely on written evidence in reply, he must –
(a)
file the written evidence; and
(b)
serve a copy on the respondent,
at least 3 days before the summary judgment hearing.

Question 25

When must the parties file their statements of costs before the summary judgment hearing?

Answer 25

44 PD 9.5(4)(b)

Not less than 24 hours before the time fixed for the hearing

Question 26

What five types of order can the judge make following a summary judgment hearing?

Answer 26

24 PD 5.1
1.
dismissal of the application
2.
conditional order
3.
judgment on the claim or issue (C applies for and gets summary judgment)
4.
dismissal of the claim or issue (D applies for and gets summary judgment)
5.
costs

Question 27

When must the parties file and serve evidence if the court wishes to make summary judgment of its own initiative?

Answer 27

CPR 24.5(3)
(a)
[both parties -at least 7 days before the date of the hearing
(b)
[If in reply - at least 3 days before the date of the hearing.]

Question 28

When can the court make a conditional order?

Answer 28

24 PD 4

Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so.

Question 29

What must the application notice include?

Answer 29

24 PD 2
(2)
a statement that it is an application for summary judgment made under Part 24
(4)
Unless the application notice contains all the evidence (if any), the application notice should identify the written evidence on which the applicant relies.
(5)
The application notice should draw the attention of the respondent to rule 24.5(1).

Question 30

What must the application notice or the evidence contain?

Answer 30

24 PD 2
(2)
The application notice must include a statement that it is an application for summary judgment made under Part 24.
(3)
(a)
identify concisely any point of law or provision in a document on which the applicant relies, and/or
(b)
State the application is made because the applicant believes that on the evidence the respondent has no real prospect of success
and in either case knows of no other compelling reason why there should be a trial

Question 31

What happens when the judge gives judgment on the claim?

Answer 31

The claim or issue is over. The judge will usually go on to assess costs. If the entire claim is over, the judge will usually go on to assess the costs of the whole action.

Question 32

What happens if the judge strikes out or dismisses the claim?

Answer 32

It is as if the claim never existed. The judge will make an order for costs to compensate the defendant.

Question 33

What happens if the judge dismisses the application for summary judgment?

Answer 33

The claim continues. The judge will make a costs order.

Question 34

What are the judge’s options if she makes a conditional order?

Answer 34

24 PD 5.2
order one party - 
(1)
to pay a sum of money into court, or
(2)
to take a specified step in relation to his claim or defence, as the case may be, and provide that that party’s claim will be dismissed or his statement of case will be struck out if he does not comply.

Question 35

What happens when the judge makes a conditional order?

Answer 35

The case can continue but only subject to conditions - 24 PD 5.2

Question 36

Why might the judge make a conditional order?

Answer 36

The judge believes that the case is sufficiently meritorious to continue, but is not wholly convinced.

Question 37

What happens after summary judgment?

Answer 37

CPR 24.6
the court may—
(a)
give directions as to the filing and service of a defence;
(b)
give further directions about the management of the case.
24 PD 8
The respondent may apply to have the summary judgment set aside if it was made in her absence…