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What is a Summary Judgement?
Summary judgment is a procedure by which the Court may decide a claim or a particular issue without a trial (see Part 24 of the Civil Procedure Rules (‘CPR’) and The White Book, paragraph 24.1.1).
Essentially, the purpose of the procedure is to encourage quick determination of cases and avoid long-running, protracted litigation to save costs. It can also be seen as a way to deter parties from pursuing claims/defences which are not properly arguable. This works in two respects: (i) if the case is based on ‘bad’ law (for example if it lacks a cause of action; and/or (ii) the evidence put forward by a party to support its position is untenable, and this is not going to change throughout the proceedings.
Who can make a summary judgment application?
An application for summary judgement can be made by any party to a claim including the claimant and defendant.
It should be noted, a claimant cannot apply for summary judgment until the defendant against whom the application is made has filed an acknowledgement of service or a defence, unless (i) the Court gives permission; or (ii) a practice direction provides otherwise.
A defendant can actively seek summary judgment at any stage of the proceedings. The Court may also initiate summary judgment of its own accord, usually after it has seen the defence and before the case management conference.
The application procedure is the same as other applications made to the Court; the Applicant will need to complete an application notice in the prescribed form along with supporting evidence. This will need to be filed with the Court and served on the receiving party. A hearing date will then be set, and the parties have an opportunity to file written evidence to assist the Court in its consideration of the application. The application will be heard without oral evidence being given by the parties. Therefore, the evidence submitted must be sufficient enough to establish strength of the case on paper alone.
The Court will grant an application for summary judgment where a claim or issue or a defence to a claim or issue has no real prospect of success, and there is no other compelling reason for a trial (CPR r 24.2).
Why are they useful?
The main advantage of applying for summary judgment is that it gives the applicant an opportunity for its case to be determined in its favour at an early stage and at a shorter hearing, saving time and costs. It can also be importantly tactically; even if the application is unsuccessful, the responding party will have been forced to set out its position and evidence at an early stage. This helps inform case strategy going forward, and could assist settlement discussions between parties to resolve matters quicker. This would then negate the need for a full trial at a later date. An application also sends a robust message to (overzealous) opponents that the claim will be pursued or defended vigorously.
However, unsurprisingly such applications also carry an inherent level of risk. In particular, if an application is unsuccessful then the applicant might be ordered to pay the costs of the responding party as well as bearing its own costs of the application. Note that the Court does have a wide discretion in this respect, and any costs award will depend on the particular facts of the case.
A summary judgment application can also delay the progression of a matter by impeding the timetable to trial. Typically, until an application for summary judgment is heard, the proceedings are suspended for other purposes. For example, if a claimant makes an application for summary judgment before the defendant has filed the defence, the defendant can wait until after the application has been heard to file its defence (CPR r 24.4(2)). Similarly, if a defendant applies for summary judgment, the claimant cannot obtain default judgment before the application has been heard (CPR r 12.3(3)).
Of course, a party might strategically wish for matters to be delayed in this way depending on the circumstances of the case.
Not suitable for some type of claims
The summary judgment procedure is not suitable for some type of claims. Generally, the more complicated the legal and factual issues in a case, the less likely summary judgment would be appropriate. This is because the Court will not be able to properly consider the case without detailed examination of documentation and the hearing of oral evidence at trial.
However, complexity will not always preclude a successful application for summary judgment. For example, in JSC BTA Bank v Ablyazov [2013] EWHC 3691 (Ch), the claimant bank obtained summary judgment in a complex fraud claim against its former chairman. In this case, it was alleged that the bank’s former chairman had, through a series of transactions, misappropriated a portfolio of securities.
The Court recognised the general principle that summary judgment should not be granted if a defendant needs more time to investigate the claim, or if the case is highly complex. However, on this occasion, the Court found that there was sufficient evidence to establish that the defendant had no real prospect of successfully defending the claim at trial.
How Berkeley Rowe can assist
For cases where the facts and law are clearly in the favour of one party, summary judgment is an effective way to avoid the time, costs and inevitable stress of protracted litigation. Such applications can also be strategically important, and even if unsuccessful, can help an applicant understand its opposing party’s arguments and evidence likely to be heard at a full trial, months down the line.
Whether a summary judgement application has been made against you or you wish to issue an application, our litigation team at Berkeley Rowe can provide you with concise and efficient legal advice to ensure the best possible outcome is delivered.