Summary Judgment Notes

SUMMARY JUDGMENT (Part 24)

(nB: this is a type of interim application, with particular rules)

24.1, Scope of this part (re summary judgment)

• This Part sets out a procedure by which court may decide a claim, OR a particular issue, without a trial.

PD 24, Para 1, Applications for part 24 summary judgment

• Attention is drawn to Part 24 itself and: Part 3 rules 3.2(3) and (5)); Part 22; Part 23 (23.6); Part 32 (32.6).

• In this PD, the word “claim” includes:

  • (1) Part of a claim;

  • and (2) an issue on which the claim (in whole or part) depends.

24.2, Grounds for summary judgment

• Court may give summary judgment, against a C or D, on the whole of a claim OR on a particular issue, IF (1) no real prospect & (2) no other compelling reason:

  • (1) ‘no real prospect of succeeding/successfully defending’:

    • (i) that C has no real prospect of succeeding on the claim or issue; OR

    • (ii) that D has no real prospect of successfully defending the claim/issue;

  • AND

  • (2) there is no other compelling reason why the case/issue should be disposed of at a trial.

• [NB, r3.4: court can strike out a SoC (or part of it) if it appears that it discloses no reasonable grounds for bringing or defending a claim.]]

• (PD24, 1(3)): An application for summary judgment under r24.2, may be based on:

  • (a) a point of law (including a question of construction of a document)

  • (b) the evidence, or lack of it, which can reasonably be expected to be available at trial; OR

  • (c) a combination of these.

Commentary, 24.2.3, re condition (1): ‘no real prospect of succeeding/successfully defending’f

• So it will defeat the application for summary judgment if the respondent shows some ‘prospect’, i.e. some chance of success

• that prospect must be ‘real’ (i.e. not false/fanciful/imaginary).

  • ‘real’ means respondent must have a case which is better than merely arguable.

  • Lower test than balance of probs But respondent is not required to show their case will ‘probably’ succeed at trial

  • A case may have a ‘real prospect’ of success, even if it is improbable (in such a case, court is likely to make a ‘conditional’ order, see below).

• The hearing of an application for summary judgment is not a summary trial

  • the court will consider the merits of the respondent’s case only to the extent necessary to determine whether it has sufficient merit to proceed to trial.

  • the court should not conduct a mini-trial.

  • At trial, the criterion to be applied by the court is ‘probability’ (victory goes to the party whose case is more probable, taking into account the burden of proof);

    • This is NOT true of a summary judgment application, where the criteria is ‘absence of reality’ (i.e. no ‘real’ prospect), NOT ‘probability (as for a trial)

• Where a summary judgment application gives rise to a short point of law or construction the court should decide that point IF (1) it has before it all the evidence necessary AND (2) if satisfied that the parties have had an adequate opportunity to address the point in argument.

• The court should not allow a case to go forward to trial simply because there is a possibility of some further evidence arising (ICI Chemicals v TTE Training).

• BUT, an application for summary judgment is NOT appropriate to resolve a complex question of law and fact, the determination of which necessitates a trial, having regard to all of the evidence.

• An additional problem arises when a point of law is taken on an appeal against an award of summary judgment which was not argued in the lower court: a determination of that point by the appeal court would deprive the losing party of an opportunity to bring a first appeal on that point.

  • In a suitable case this problem might be solved by the appeal court allowing the appeal against the award of summary judgment and then immediately rehearing the summary judgment application again, thereby making a first instance decision on the matter.

• In practice, it is often more difficult to apply the ‘no real prospect of success’ test on an application for summary judgment, than it is to try the case in its entirety:

  • The decision-maker at trial will usually have the advantages of: a better grasp of the case of the whole; hearing the evidence tested; receiving more developed submissions; and of having more time to digest and reflect on the materials.

• EG, Beiersdorf v Ramlort, summary judgment refused: the question whether alleged letters of consent (re alleged trademark infringements) were genuine should be determined at trial, after disclosure and cross-examination in the usual way.

• Disposal of a claim (or part) by summary judgment may raise issues re Art 6 ECHR right of access to a court [[similar to those issues re power of court to strike out under r3.4(2), see commentary at 3.4.1 below]].

Commentary, 24.2.4, re condition (2): ‘no other compelling reason for a trial’

• Egs of ‘compelling reasons’ for refusing summary judgment:

  • The fact that the claimant company was in liquidation, where there were latent claims and cross-claims between the parties (Bouygues).

  • Summary judgment for the C against the first D, was held to be inappropriate where similar issues remains remained to be determined at a trial as between the first D and other parties (Iliffe v Feltham Construction)

  • Refusal to rule upon a short point of construction of the terms of an insurance contract, where those terms were said to be standard terms widely used in the insurance market (A C Ward v Catlin).

• Where the claim on which summary judgment is sought involves serious allegations of bad faith against a party is not by itself a compelling reason for trial: findings of bad faith can be reached in a summary judgment application IF such issues can be determined without a trial in all the circumstances.

• Pre-CPR, the following circumstances were held to afford ‘some other reason for trial’:

  • [[NB: in July 2000, the word ‘compelling’ was added. This does not appear to alter the substance of ambit of summary judgment]]

  • Where C’s case...

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