summary judgment

When a claimant sues a defendant, either the claim or the defence may be weak, and so much so, that the legal proceedings should not be permitted to proceed to the trial. Applications for summary judgment are made as a means to cut short the usual process and preparations for the trial of the legal proceedings where the claims or defences (or part of them) made are not fit for trial.

Judgment at an early stage avoids the need for the parties to engage in disclosure, preparation of witness statements, and the other interim steps with the consequence that the legal proceedings are brought to an end many months or years before they otherwise would.

In England, the term is spelt "summary judgment" rather than "summary judgement" in the CIvil Procedure Rules at CPR 24.

Test for Summary Judgment

English courts may give summary judgment against a claimant or defendant on the whole of the claim or on a particular issue if it considers that:

1. the claimant or defendant (as the case may be) has no real prospect of succeeding on the claim, defence, counterclaim, or defence to counterclaim.
   One of the questions which the court may ask is: 'Is there a fair or reasonable probability of the defendants having a real or bona fide defence’ (Ackner LJ in National Westminster Bank v Daniel [1993]) and/or ‘is what the defendant says credible’ (Lloyd LJ, Standard Chartered Bank case, Court of Appeal, [1990]). If the statement of case is not credible there is no fair or reasonable probability of the defendant having a defence;
2. there is no other compelling reason why the case or issue should be disposed of at trial;
3. the real prospects of success alleged by the respondent are fanciful or merely arguable;
4. it is clear that the respondent to the application will not be able to establish facts on which he relies.

In the process of weighing the application, the court is not entitled to conduct a mini-trial on the documents, as the jurisdiction is an exercise of the summary jurisdiction of the Court.

Complex Cases

Summary judgment is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. The procedure was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the claimant really has a cause of action.

Complex cases may rely on inferences of fact. The overriding objective may well require the claim to go to trial in the interest of fairness to the parties. The relevant inference may not be able to be safely drawn without further disclosure by the parties and oral evidence at the trial. Courts will endeavour to guard against the temptation of drawing inferences as a matter of probability, because the achievement of the overriding objective (at CPR 1) requires a much higher degree of certainty. In complex cases, the frontier between what is merely improbable and what is clearly fanciful is blurred, the case or issue will ordinarily be left to trial.

Courts will be alive to the practice of defendants/respondents making cases more complicated than what they need to be.

Timing Summary Judgment Applications

Applications for summary judgment should usually be made before the first case management conference. Significant delay bringing an application may be fatal to the application. In some cases, defendants file a defence to delay judgment. In instances such as these, an application for summary judgment may be filed with a view to showing the court that there is no real defence to the claim, and obtain judgment.

Applications for summary judgment should be accompanied by evidence in support and a draft order.

Real Prospect of Success

On Summary Judgment applications, the Court considers whether the party making the claim has a real, as opposed to fanciful, prospect of success advancing the claim. Lord Woolf in the Court of Appeal Swain v Hillman (2001) stated that “The words 'no real prospect of being successful or succeeding' do not need any amplification, they speak for themselves.”. It is likely that there summary judgment will be justified where there are no reasonable grounds for bring the claim.

Applications are not determined by a court on the balance of probabilities, or even that the respondent to the application has an arguable case - it is whether there is a realistic (as opposed to a fanciful) prospect of success or not. This may be achieved by successfully showing:

1. a substantive defence (eg contributory negligence)
2. a point of law destroying the claimant's cause of action (eg Statute of Limitations bars the action);
3. a denial of the facts underlying the cause of action;
4. further facts undermine the cause of action.

Public Policy

There are also public policy objectives to bear in mind for such applications. Prompt disposal of unmeritorious claims avoids the court’s resources for from consumed by legal claims which should not be before the Court, and would serve no purpose. If a party has a claim which is bound to fail, then the proceedings, it is in the parties’ interests that the defaulting party know that to be the case at an early stage.

Examples

An example of where an application for summary judgment would be an appropriate course of action might be where the claimant alleges a breach of contract and on the evidence, the legal requirements to allege a breach of contract have not been pleaded. Likewise, it may be that a supplier sues for a debt, against a person who did not incur a debt to the supplier. Also, the claims set out in the statement of case may be completely at odds with the documents and other material before the Court.

Strike Out Applications

Parties to litigation looking to apply for Summary Judgment often also apply to strike out the relevant claim in the same application. The Court has power to do so where (1) the statement of case discloses no reasonable grounds for bringing or defending the claim; (2) the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or (3) there has been a failure to comply with a rule, practice direction or court order.