4. Summary Judgement Flashcards
What types of proceedings is summary judgment available in?
Summary judgment is available in any type of proceedings against a claimant or a defendant. However, it is not available against a defendant in proceedings for possession of residential premises against a mortgagor or tenant, or contract-holder, or against a former tenant or former contract-holder holding over with protected occupancy.
What are the grounds for summary judgment?
The grounds for summary judgment include the court’s determination that a party has no real prospect of succeeding on the claim, defence, or issue and there is no other compelling reason why the case or issue should go to trial.
What is the timing for a summary judgment application?
A claimant may not apply for summary judgment until the defendant has filed an acknowledgement of service or a defence unless the court gives permission or a rule/practice direction states otherwise.
What is the timing for a summary judgment hearing?
When a summary judgment hearing is fixed, the respondent must be given at least 14 days notice of the date fixed for the hearing and the issues which it is proposed the court will decide at the hearing.
What must be included in an application notice for summary judgment?
An application notice for summary judgment must state that the application is for summary judgment, identify any point of law or document relied on, set out or attach any written evidence relied on, state the applicant believes the respondent has no real prospect of succeeding on the claim, defence, or issue, and state that the applicant knows of no reason why the issue/claim should await trial. It should also draw the respondent’s attention to their right to rely on evidence opposing the application.
written evidence required at a summary judgment hearing?
If a party wishes to rely on written evidence at the summary judgment hearing, they must file and serve copies of such evidence on every other party at least 7 days before the hearing in the case of the respondent’s evidence and 3 days before the hearing in the case of any evidence in reply from the applicant. Written evidence already filed and served does not need to be re-submitted.
How are applications for summary judgment disposed of?
When the court determines a summary judgment application, it may give directions as to the filing and service of a defence, give further directions about the management of the case, and make its order subject to conditions in accordance with rule 3.1(3).
What does ‘no real prospect of succeeding’ mean in the context of summary judgment?
No real prospect of succeeding’ means that the claim or defence is not realistic; it carries some degree of conviction and is more than merely arguable. The court is required not to conduct a mini-trial but must consider the evidence that can reasonably be expected to be available at trial.
Why is a mini-trial inappropriate at a summary judgment hearing?
A mini-trial is inappropriate at a summary judgment hearing because the purpose is to determine quickly and without extensive evidence whether a party has a realistic chance of success. The court should not engage in detailed examination of evidence or complex arguments that are better suited for a full trial.
What question should be asked when it is suggested that the position might change between now and the trial stage?
When it is suggested that the position might change by the trial stage, the question to ask is whether there are reasonable grounds for believing that disclosure or further evidence at trial may materially alter the evidence available at the summary judgment stage, thereby affecting whether the claim has a real prospect of success. It is not sufficient to merely suggest that ‘something may turn up’
What are short points of law and construction in the context of summary judgment?
Short points of law and construction in the context of summary judgment refer to issues that can be quickly resolved without extensive hearing or complex fact-finding. These typically involve clear legal principles or interpretations of contract terms that do not require substantial evidence beyond the documents themselves. It’s usually appropriate to apply for summary judgment on these points after the exchange of experts’ reports and their joint statement if the conclusion largely depends on expert evidence.
What is the burden of proof in a summary judgment hearing?
In a summary judgment hearing, the burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. If the applicant provides credible evidence supporting the application, the respondent then carries an evidential burden to prove some real prospect of success or another reason for having a trial. Respondents claiming further evidence will be available at trial must substantiate their claim by describing the evidence’s nature, source, and relevance.
What does it mean when there is ‘no other reason why the case should be disposed of at trial’?
No other reason why the case should be disposed of at trial’ implies that beyond the lack of a real prospect of succeeding, there are no additional compelling factors that necessitate a full trial. Examples where summary judgment might be inappropriate despite the lack of prospects include cases where the issues have wider implications beyond the parties involved, such as standard terms widely used in an industry, or where other substantive claims between the parties need resolution at a trial.
What is the effect of a set off or counterclaim on summary judgment?
A set off or counterclaim can prevent the granting of summary judgment if the defendant shows that the set off or counterclaim raises a triable issue with some prospect of success. If the value of the set off or counterclaim is equal to or greater than the claim value, the court may dismiss the application for summary judgment or require the claimant to obtain judgment only for the excess amount. In cases where the counterclaim cannot act as a set off, the court may grant summary judgment to the claimant but stay enforcement pending the trial of the counterclaim.
What is the rule regarding set off in action on a dishonoured bill or cheque?
In actions on a dishonoured bill or cheque, the defendant typically cannot use a counterclaim or set off as a defense. This principle holds even if the counterclaim relates to the same transaction that led to the issuance of the bill, cheque, or note. The rationale is to treat such financial instruments akin to cash, simplifying their enforcement without the complexities of associated disputes.
What orders can the court make on an application for summary judgment?
On an application for summary judgment, the court may issue various orders including: judgment on the claim or an issue therein, striking out or dismissal of the claim, dismissal of the application, a conditional order, orders for payment into court or security for costs, and orders dealing with costs. The specific order will depend on the court’s findings regarding the prospects of the claim or defense and any other relevant case management issues.
What is a judgment with stay of enforcement?
A judgment with stay of enforcement is an order where the court grants judgment but delays its enforcement, usually pending the resolution of a counterclaim or further proceedings. This type of judgment is appropriate where the claimant has succeeded on their claim, but the defendant has presented a plausible counterclaim of a value which equals or exceeds the claim. The court may stay enforcement of the judgment until after the trial of the counterclaim or conditionally, depending on the defendant paying the difference by a specified date if the claim value overtops the counterclaim.
What is a conditional order in the context of summary judgment?
A conditional order in the context of summary judgment is made when the court finds potential but improbable success of a claim or defense. The order typically requires the relevant party to pay a sum of money into court or to take a specified step in relation to their claim or defense. Failure to comply with the conditions set in the order results in the dismissal of the party’s claim or the striking out of their statement of case.
What are the five principles when considering a conditional order for payment into court or security for costs?
The five principles when considering a conditional order for payment into court or security for costs are: ensuring the condition is achievable for the defendant, the defendant must show inability to comply with the payment condition, the defendant must demonstrate that no funds would be made available to them, the court should not impose a condition likely impossible to meet, and the court’s power to make a conditional order is not limited to cases where the defence’s success is improbable but may be used in various circumstances like repeated non-compliance or doubtful litigation faith.
What happens with summary judgment in the absence of the applicant or respondent?
If the applicant or respondent fails to attend the summary judgment hearing, the court may proceed in their absence. If an order is made, the absent party has the right to apply to have the order set aside or varied. The court, when reviewing such an application, will make any decision it deems just, including potentially relisting the hearing or revising the judgment if appropriate grounds are shown for the absence
How can a summary judgment order be set aside?
A summary judgment order can be set aside if the party against whom the judgment was made applies to the court for the order to be set aside or varied. This can happen if the party was absent from the hearing where the summary judgment was granted. The court, upon such an application, has the discretion to set aside or vary the order based on just considerations, which may include the reasons for the absence and the merits of the case presented by the absent party
