Summary Judgment Flashcards
Who can a summary judgment be made against?
When can an application for summary judgment be made? (TEST)
Summary judgment can be made against a C or D on the whole of a claim or on a particular issue within a claim
It it considers that:
- C has no real prospect of succeeding on the claim or issue; OR
- D has no real prospect of successfully defending the claim or issue
AND
No other compelling reason why case/issue should be disposed on at a trial
In what types of proceedings can the court give summary judgment against a Claimant?
In what types of proceedings can the court give summary judgment against a Defendant?
Claimant = ANY type of proceedings
Defendant = ANY type, EXCEPT:
- proceedings for possession of residential premises
- Admiralty claims in rem (claim against a ship)
What restrictions are there on when a C can apply for summary judgment?
What restrictions are there on when a D can apply for summary judgment? ]
If D applies for summary judgment what effect does that have on the C’s ability to apply for default judgment?
Claimant = NOT UNTIL D has files acknowledge of service or a defence — UNLESS the court gives PERMISSION
Defendant = No restrictions - can file application as soon as claim form is served — but in practice normal to win until defence is served then apply
Then C CANNOT apply for DEFAULT judgment
If a C applies for summary judgment before the D has filed a defence, does D then need to file a defence before the hearing takes place?
Can a summary judgment hearing be fixed of the court’s own initiative?
Once the summary judgment hearing date has been fixed, what notice needs to be given?
NO
Yes
Notice = Respondent or parties (if court fixed hearing itself) must be given at least 14 days’ notice of the date and the issues what the court will decide at the hearing
What does a real prospect mean in the context of summary judgment?
What does no other compelling reason mean?
Carrying some degree of conviction
Not false, fanciful or imaginary
Has to be BETTER than merely arguable,
No compelling reason = no good reason
May be if there are issues that need full investigation at trial
Who bears the burden of proof in an application for summary judgment?
On the APPLICANT to show that respondent has no real prospect of success and there there is no other compelling reason for trial to be held
What does an applicant’s application notice or the evidence attached need to include?
Concisely identify points of law relied upon,
&/or
State that application made because pm the evidence respondent has no real prospect of success
And in either case, state that the applicant knows no other reason for a trial to take place
Also needs to state that it is a pt 24 application
An application for summary judgment may be based on what?
What can an application for summary judgement be made in relation to?
- Point of law
- Evidence which can reasonably be expected to be available at trial, or lack of
- Combination of both
Made in relation to
Whole claim
Party of a claim
Issue within a claim
If the respondent is planning to rely on written evidence, when must this be filed and served?
What if the applicant then wish to rely on their own evidence in reply to this?
At least 7 days before summary judgment hearing
Filed and Served at least 3 days before hearing
- Where the C’s claim exceeds the D’s counterclaim or set off, can the C obtain summary judgment?
What if C’s claim is lower or equal to D’s counterclaim/set off?
What happens if the D’s counterclaim does not amount to a set off?
- Yes C will get judgment for the balance
E.g if C claim for £10k, D’s CC/Setoff is £7,500, then judgment will be for £2,500 - Then C application for summary judgment will FAIL
- Then C may get judgment but with a stay on enforcement of the judgment until the trial for the counterclaim
What orders may the court make on an application for summary judgment?
(1) Judgment on the claim (i.e for the C)
(2) striking out/dismissal of the Claim (i.e for the D)
(3) Dismiss the application for summary judgement (for the respondent)
(4) Conditional order
+ Order for costs
+ directions (case management)
What if it appears to the court that a claim or defence may succeed but it is improbable that it will do so, what will the court order?
Court may make a conditional order
What is a conditional order?
order that requires a party …
(1) to pay a sum of money into court, or
(2) take specified step in relation to their claim/defence
AND
Order provides that party’s claim will be dismissed or statement of case struck out if they do not comply
What is the cheque/direct debit rule?
What defences are there?
Treated as cash, if bounces the seller of the goods can sue the buyer of the goods on the basis on the cheque rather than the underlying contract for the goods.
Buyer can only raise limited defences if the seller applies for summary judgment:
Fraud
Invalidity
Total failure of consideration - i.e all goods rejected by buyer
Partial failure of consider - i.e some of the goods are rejected by the buyer
What factors will the court consider when it is considering making a condition order following a hearing of an application for summary judgment?
In what other circumstances may a condition order be made?
D ability to comply with the condition, if there is as propose to of D successfully defending the claim, court must not impose a condition which it would be impossible for the D to comply with
Burden is on D to prove they would not be able to comply, nor would be able to get funds from else where
____
No just where is it improbable that the defence will proceed, can also be used if there is a history of failure to comply with order or there is real doubt whether the party in question is conducting the litigation in good faith
