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Civil Litigation Notes

12 Summary Judgment Notes

Updated 12 Summary Judgment Notes

Civil Litigation Notes

Civil Litigation

Approximately 50 pages

Are you preparing for the Civil Litigation Paper 2 exam? Struggling to navigate through the labyrinth of Civil Procedure Rules while under time constraints? This index is structured around the key Syllabus Areas outlined by the BSB, ensuring that you have quick access to all the examinable materials instead of frantically flipping through pages during the exam.

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12 – Summary Judgment

3. Summary judgment

Grounds for summary judgment

  • No real prospects of succeeding/successfully defending AND No other compelling reason why it should be disposed of at trial.

  • NB: An application for summary judgment can be made by C against D and by D against C.

CPR r 24.2

No real prospects of succeeding/successfully defending

  • Realistic, as opposed to a fanciful prospect of success.

  • Carries some degree of conviction; more than merely arguable.

  • Not meant to dispense with the need for a trial where issues should be considered at trial.

Commentary at 24.2.3

Burden of proof

  • Onus is on the applicant.

Commentary at 24.2.4

No other compelling reason for a trial

  • Examples where there was a compelling reason to refuse summary judgment: Company in liquidation; latent claims; similar issues to be determined at a trial; standard terms of contract.

Commentary at 24.2.5

Effect of a set off or counterclaim

  • C may be prevented from obtaining summary judgment if D raises set off / counterclaim (because it shows some prospect of succeeding).

  • Set off: Set off is a defence; any summary judgment application should be dismissed, provided the value of the set-off is at least equal to the value of the claim. Where a set-off is not worth as much as the claim, the appropriate order is for summary judgment for the undisputed balance.

  • Counterclaim: The appropriate order is to enter summary judgment subject to a stay of execution pending trial of the counterclaim.

Commentary at 24.2.6

No set off in action on dishonoured bill or cheque

  • Traditionally, the courts treat cheques, bills of exchange and promissory notes as cash. If a defendant had paid cash, it would be too late for them now to raise a set-off or counterclaim to avoid payment.

  • If D pays by a dishonoured cheque, the court will not permit any set-off or counterclaim either to prevent summary judgment or to stay execution of it, unless there are exceptional circumstances (e.g. fraud, invalidity, failure of consideration).

Commentary at 24.2.7

Types of proceedings in which summary judgment is available

  • Summary judgment against C: No excluded types of proceedings.

  • Summary judgment against D: The only excluded category is residential possession proceedings against a mortgagor or a tenant holding over after the end of the tenancy if their occupancy is protected by the Rent Act 1977, the Housing Act 1988 or the Renting Homes (Wales) Act 2016.

CPR r 24.3

Procedure for obtaining summary judgment

  • Can be applied by C or D.

  • Time for applying for summary judgment: Only after D has filed either an acknowledgment of service OR a defence + Before filing of directions questionnaire.

  • If application made after filing of acknowledgment of service, but before filing of defence: No need to file defence.

  • Where D has applied for summary judgment against C, C cannot obtain a default judgment until the summary judgment application has been disposed of: CPR r 12.3(3)(a)).

  • Court may fix summary judgment hearing of its own initiative.

  • Notice period: 14 clear days, but may be varied by PD.

CPR r 24.4; PD 24 paragraph 1

Evidence for the purposes of a summary judgment hearing

  • Evidence by the respondent: 7 clear days before the hearing >> Evidence in reply by the applicant: 3 clear days before the hearing.

CPR r 24.5
The court’s...

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