Summary Judgment

Question 1

Which CPR part deals with this?

Answer 1

Part 24

Question 2

Cases in which C may not make an application for summary judgment

Answer 2

Admiralty action in rem
Possession proceedings for residential premises against either a mortgagor or a tenant with protection under certain housing legislation

Question 3

When may C apply for summary judgment

Answer 3

C may not apply for summary judgment until D has engaged in the litigation process, either by filing an acknowledgement of service or a defence, unless the court gives permission or a PD provides otherwise.

Question 4

If C applies for summary judgment before D has filed a defence…

Answer 4

…D does not need to file a defence before the hearing.

Question 5

Time frames

Answer 5

The time frame for notice of hearing and filing the evidence is not the same as the usual 3-day rule for interim applications. Notice to the respondent must be given 14 days before the hearing. Defence must be filed and served 7 days before the hearing, and the applicant will file further evidence 3 days before.

Question 6

Test for summary judgment

Answer 6

The court will grant summary judgment on the whole of the claim or on particular issue if it considers that:

1. C has no real prospect of succeeding on the claim or issue; or
2. D has no real prospect of successfully defending claim or issue.

AND in either case there is no clear or compelling reason why the case or issue should be disposed of at trial.

Question 7

“Real prospect of success” meaning

Answer 7

Has the same meaning as in relation to default judgment, but the key different is that you look at it from a different angle. The applicant is asserting it and so has BOP; what was a very low bar is now a very high bar. Court will consider whether they have a realistic as opposed to fanciful prospect of success. Must not conduct a mini trial, but this doesn’t mean they should take everything at face value and without analysis.

Question 8

What evidence must court consider in determining “real prospect of success”?

Answer 8

Must take into account evidence put before it and evidence that can be reasonably expected to be available at trial. Should hesitate about making a final decision without a trial when reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge so as to affect the outcome of the case. But should grasp the nettle if it feels it has all the evidence to properly determine a question of law or construction. It is not enough to simply argue that a case should go to trial because something might turn up that might have a bearing on construction.

Question 9

How is “no other compelling reason” interpreted?

Answer 9

Wide and various circumstances (unfortunately, conflicting authorities). NOT the same reasoning as ‘some other good reason’ under Rule 13.

Question 10

Cases where there is a “compelling reason” to refuse summary judgment

Answer 10

The fact that the claimant company is in liquidation is a compelling reason to refuse summary judgment.

Where there are multiple parties and issues to be determined between D and other parties are the same there should be no summary judgment.

Where terms under consideration are standard terms in a contract and so a decision might well apply to numerous contracts there should be no summary judgment.

Where there are allegations someone has acted unconscionably and judgment should be at a public trial there should be no summary judgment.

Where case will turn on cross examination of lay or expert witness there should be no summary judgment.

Question 11

Who may apply for summary judgment?

Answer 11

C or D (both “the applicant”)

Question 12

Cases where you might be able to have summary judgment.

Answer 12

May be able to have summary judgment if application made after exchange of expert reports and, in most cases, after the experts have discussed the case and produced a joint statement.

Could have summary judgment in a libel case where the jury could only properly decide the case one way.

Question 13

Range of orders the court can make

Answer 13

Judgment on the claim - Summary judgment has been granted.

Striking out or dismissal of claim - If D has applied for summary judgment, they have succeeded as the claim is no more.

Dismissal of the application - Summary judgment application has not been successful

Conditional order

Consequential orders

Court will also make orders for the filing and serving of a defence and evidence as appropriate

Also has power to set aside a summary judgment order made on the non-attendance of a respondent

Question 14

Conditional orders

Answer 14

These are for the situation where the court is in two minds about whether to let the case proceed to trial or not. If so, must err on the side of caution and refuse the summary judgment application. This is the position if the court considers only that it is possible that a defence may succeed but improbable.

Question 15

Two types of conditional order

Answer 15

1. Order that a party pay money into court
2. Require them to take a particular step in relation to its claim or defence

This will be expressed with a time limit and consequences of non-compliance, e.g. summary judgment for the applicant will be granted if this is not done on time.

Question 16

Case law on what the judge will take into account in determining whether to grant a conditional order.

Answer 16

There have been decisions on importance of C giving notice to D that it may seek a conditional order so the D can adduce evidence of its potential financial ability (or lack of) to meet a condition.

Question 17

How set offs and counterclaims fit with summary judgment.

Answer 17

The key message is that if D has a counterclaim which amounts to a set off, summary judgment will not be granted. But if it’s a simple counter claim, this will not prevent summary judgment. If the counter claim is not set off, summary judgment will be granted but its enforcement is likely to be stayed pending the determination of the counter claim.

Question 18

Set offs

Answer 18

Generally speaking, D must include its claim for a set off in its defence. Categories of set off: it is always a claim for money. Five categories:

Mutual debts (debts owed between C and D, even if they arise from wholly unconnected subject matters)

Claim for damages for breach of an implied term under SGA or CRA (against a claim for payment of goods)

Claim for poor workmanship (against claim for price of work)

Claim for breach of covenant of repair under a least (against a claim by the landlord for arrears of rent)

Equitable set off - Arises when a counterclaim is so closely connected with the claim that it would bet manifestly unfair to allow the claim to proceed without it being considered. May exist when there are competing claims arising out of the same contract between the parties, or a series of linked transactions between the same parties.

Question 19

The cheque rule

Answer 19

Cheque is regarded as an equivalent of cash. Accordingly, on a claim for the equivalent of a cheque, the court will grant summary judgment without considering any counterclaim or set off which the defendant might assert. This would be a counterclaim or a set off arising in respect of the underlying contract which resulted in the payment being made or which is independent of it. Applies equally to promissory notes, bills of exchange, or direct debits.