SCR o 22 - Summary judgment Flashcards
22.04 Summons and affidavit in support (Application by PLAINTIFF for summary judgment)
An application shall be made by summons supported by an affidavit —
- verifying the FACTS on which the claim or the part of the claim is based; and
- stating that in the BELIEF of the deponent the DEFENCE to the claim (or relevant part of the claim) —
o has NO REAL PROSPECT OF SUCCESS; or
o has no real prospect of success EXCEPT as to the AMOUNT of the claim.
The plaintiff shall serve the summons with copy of the affidavit and any exhibit on the defendant not less than 14 days before the day for hearing named in the summons.
22.05 Defendant to show cause (Application by PLAINTIFF for summary judgment)
The defendant may SHOW CAUSE against the application by affidavit or otherwise to the satisfaction of the Court.
An affidavit showing cause may contain a STATEMENT OF FACT based on INFORMATION AND BELIEF if the grounds are set out.
Unless the Court otherwise orders, the D shall SERVE a copy of any affidavit and of any exhibit referred to not less than 3 days before the day for hearing named in the summons.
NB: The STANDARD OF DILIGENCE required of the defendant in preparing the case in opposition to the application is NOT AS HIGH as that required in preparing for trial — such diligence AS IS REASONABLE in the circumstances to put before the court, albeit in a summary form, all the evidence relied on in the defence (22.05.15)
22.06 Affidavit in reply (Application by PLAINTIFF for summary judgment)
Where the defendant serves an affidavit showing cause, the Court may by order allow the plaintiff to rely upon an affidavit in reply.
22.07 Cross-examination on affidavit (Application by PLAINTIFF for summary judgment)
The Court may order any party or the maker of any affidavit—
* to attend and be examined and cross-examined; or
* to produce any documents, or copies of or extracts from those documents.
Where a party is a corporation, the Court may order XXN of any officer.
22.08 Hearing of application for summary judgment (Application by PLAINTIFF for summary judgment)
ON hearing an application for SJ, the Court may—
- dismiss the application;
- give such judgment for the P against the defendant as is appropriate;
- give the D leave to defend either unconditionally or on terms; or
- with consent of all parties, dispose of the proceeding finally in a summary manner.
22.17 Summons (Application by DEFENDANT for summary judgment)
The application shall be made by summons.
(NB: affidavit optional for D. If SJ app made by P, P must serve both summons and affidavit)
22.18 Affidavit in support (Application by DEFENDANT for summary judgment)
IF the D intends to rely on an AFFIDAVIT in support of app for SJ, they should file one with the summons.
An affidavit relied upon by the D may contain a STATEMENT OF FACT based on info and belief if the grounds are set out and the Court considers that the statement ought to be permitted.
The defendant shall SERVE the summons, copy of any affidavit in support and of any exhibit on the plaintiff not less than 14 days before the day for hearing named in the summons.
22.19 P to show cause (Application by DEFENDANT for summary judgment)
The P may SHOW CAUSE against the application by affidavit or otherwise to the satisfaction of the Court.
An AFFIDAVIT may contain a statement of fact based on information and belief if the grounds are set out.
Unless Court otherwise orders, the P shall SERVE a copy of any affidavit and of any exhibit on the D not less than 3 days before the day for hearing named in the summons.
22.23 Setting aside judgment (Application by DEFENDANT for summary judgment)
The Court may set aside or vary any judgment given against a party who does not attend on the hearing of an application by defendant for summary judgment under s62 CPA.
