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Applying for summary judgment

 Applying for summary judgment is risky but potentially powerful. Ensure you get good legal advice first.

If you are considering applying for summary judgment, our litigation solicitors can advise on the merits, procedure and evidence needed. We can also help if you are defending an application. 

Potential advantages of applying for summary judgment include:

Time – It is much quicker to go to summary judgment than it is to wait for a full trial.

Costs – save additional costs involved of continuing with a full trial.

Tactics – even if unsuccessful, it can force the hand of the other party to set out its position and evidence at a much earlier stage.

Potential disadvantages and risks of applying for summary judgment include:

Difficult legal test – The application will only succeed if the applicant can satisfy the difficult legal test in the rules. The respondent need only show that they may succeed to prevent summary judgment from being granted.

Costs – If the applicant loses, then it will be likely that he or she will be ordered to pay the respondents costs as well as his or her own. Even if the applicant goes on to win the case overall, the costs of the summary judgment application will not be recovered.

Delay – the proceedings generally are suspended whilst the application is determined. This can delay the matter for even longer than it would had if no application was made.

 How and when to apply for Summary Judgment 

Either the Claimant or Defendant can apply for a Summary Judgment, however the Court will only grant such a request when either party can show that :-

  • The claim or defence has no real prospect of success; and
  • There is no compelling other reason for a trial

Proof that a claim or defence has no real prospect of success can be based on either points of law or the evidence which would be available at any trial. It should be noted that the burden is on the applicant for summary judgment to be able to show that the other party has no real prospect of success, however a respondent to such an application should not be complacent and he should make sure that he shows that he has a case that could succeed.

It should be remembered that the Court is only considering whether or not the claim/defence has a real prospect of success, so the respondent need only show that he may succeed at any trial in the matter.

‘Some other compelling reason to go to trial’ would include:

  • That the other party requires time to investigate the claim and has not been given the opportunity to do so and that the results of such an investigation may provide him with a real prospect of success.
  • That the case is extremely complex and that it requires full consideration at trial and not a simple review at summary judgment.
  • That the facts of the case are held entirely by one side and that it would therefore be unjust to grant summary judgment before the respondent had the opportunity to put forward their defence in light of any disclosure that would have to be made in the course of an ordinary trial.

 Procedure for Summary Judgment aplication 

When an application for Summary Judgment is made by the Claimant or Defendant it needs to be filed at Court and served on the other party. The application should be supported by evidence, and where necessary a witness statement.

If the Court is proposing summary judgment of its own initiative, it will write to both parties informing them of the same and setting a date for the hearing.

In all cases the parties should have 14 days notice of the hearing and the respondent will have to file and serve any evidence on which they intend to rely at least seven days before the date of the hearing. If the applicant wants to respond to any such evidence, they must file it at least three days before the hearing.

The applicant must then provide a bundle of documents in advance of the hearing and both parties must provide the Court with a skeleton argument setting out the basis of their case.

 Possible summary judgment outcomes 

On hearing an application for summary judgment, the Court make any one of the following orders:

  • Grant summary judgment on the claim/defence or a particular part of it.
  • Dismiss the application for summary judgment.
  • Grant summary judgment on part and dismiss the application on the rest.
  • Make a conditional Order -this is where the Court holds that is it possible that the claim/defence may succeed but that it is improbable that it would actually do so. In such cases the Court could order that the respondent needs to pay a sum of money into the Court, or that they need to take a specific step in relation to their claim/defence.

 For further advice on your particular case, get in touch with us – our litigation lawyers have dealt with many summary judgment applications and can provide an experienced steer as to prospects and tactics. 

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