What is Summary Judgment?
Summary judgment is a court order - judgment - which brings litigation to an end early.
The legal proceedings are brought to an end when, at a hearing of a summary judgment application a court finds that the claim or the defence:
- has no real prospect of success, and
- there is no other compelling reason why the case should be allowed to proceed to trial.
Courts say that summary judgment is:
designed to deal with cases that are not fit for trial at all: Lord Woolf in Swain v Hillman (1999), the Court of Appeal
The judgment avoids a close examination of all the evidence which might be produced at the usual end point of litigation, which is the trial.
The parties are saved significant time, expense, worry and the distraction of enduring the entire litigation process through to the trial. There is no point.
Applications brought at the right time ends proceedings in weeks or a few months, rather than many months or years.
Why Summary Judgment?
Summary judgment entered on the merits of a case.
It’s a case that can't succeed in law. It’s clear to the court that the claim or defence advanced by the party is unsustainable.
That can be for a variety of reasons, including:
- it’s bad in law: it does not disclose a cause of action
- what a party says in its evidence to support the claim is untenable, and that is not going to change throughout the proceedings.
Courts take the view that when a claim or defence is bad in law, the sooner that is ended, the better.
The claim sued on is disposed of fast:
- A successful claimant will be able to move on to enforcement far more quickly.
- A successful defendant dispenses with hassle of the following stages of legal proceedings: disclosure, preparation and exchange of evidence, further interim hearings and the trial.
Applications for Summary Judgment
Applicants may apply for summary judgment in respect of their entire case or only part of it.
Accordingly, separate causes of action which do not have a real prospect of success are able to be pared from the proceedings, and the good causes of action remain.
Applications for Summary judgment are able to be made in all cases, in all courts, other than:
- certain types of proceedings for possession of residential premises; and
- admiralty claims in rem.
Summary judgment applications however have their place in litigation. It not appropriate in all cases that may seem like it.
Some cases should be allowed to proceed to trial when issues exist which should be investigated at the trial.
Part 24 of the Civil Procedure Rules sets the test for summary judgment. It is there for appropriate cases to be disposed of summarily: when there is no real prospect of success.
Analysis of an Application
Part of the process of assessing an application is what is said in the particulars of claim or defence, and casting it against what the evidence says.
All of the circumstances of the case should be taken into account, which includes:
- relevant Statements of Case, which may include:
- originating Claim Form, whether separate Particulars of Claim are filed or not,
- Counterclaim, and/or
- Defences to Counterclaims.
Statements of Case set out the alleged factual basis of the legal claim.
These are the documents which define the legal dispute between the parties.
No other document in the proceedings does so, other than Further Information and Clarification. These clarify the allegations of fact set out in a Statement of Case.
- the documentary evidence before the court at the time of the application
- the evidence likely to be produced by the parties and for the trial, if the proceedings were allowed to proceed
Timing of Applications
When a party wishes to apply for summary judgment:
- a claimant (or a counter-claimant) must wait until the defendant has filed an Acknowledgment of Service or Defence, unless the court has given permission to override that default rule
- a defendant may apply at any time.
It is usually sensible though for a defendant to file a defence, to show a court at the summary judgment hearing how the defendant would defend the case.
An application for summary judgment should be filed and served in time for the application to be heard at the first case management conference, but in any event without delay. 7 days after service of the Statement of Claim is a good marker.
The respondent to the application must be given at least 14 days’ notice of the hearing.
As with any other application made to a court:
- the usual form of Application Notice (Form N244) should be used to initiate the Application
- almost invariably, applications for summary judgment are supported by evidence, in a witness statement. It must be served with the Application Notice
Again, the respondent must be served with the application notice and any evidence in support 14 days in advance of the hearing date, whenever that might be fixed by the court.
This gives the respondent a fair opportunity to prepare their own evidence, and serve it.
The applicant is required to serve evidence in reply to the respondent’s evidence (if any) at least 3 days before the date fixed for hearing.
Applications are usually heard by Masters in the High Court and district judges in the County Court. Where part of the relief sought by the claimant - and the claimant is the applicant - involves an injunction, the hearing should be listed before a judge.
The Legal Test for Summary Judgment
To defeat an application for summary judgment it is only necessary to show that there is a "real" as opposed to a fanciful - think fictional or self-deceptive - prospect of success.
In Swain v Hillman (1999), it was said that the words “real prospect of success”:
do not need any amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success or […] they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success.
So, a litigant, to successfully defend an application for summary judgment:
- must have a case which is better than merely arguable
- is not required to show that they will probably succeed at trial
- have a real prospect of success, even if it is improbable that their case will succeed
The test whether summary judgment should be awarded is a kind of reverse test of success.
It’s not if the respondent will win their case.
It is more that the respondent has no hope of winning, or they are doomed to fail.
To put it another way:
- a legal claim or defence advanced in a court must be recognised in law. The facts alleged in the relevant statement of case must disclose a claim or defence, or
- evidence should exist to support the claim or defence:
- whether or not it before the court, or
- unlikely to come out prior to the trial.
It has been put in these terms by Courts when parties have been sued:
- the respondent must show it has a realistic as opposed to a fanciful prospect of success: that's Swain v Hillman
- there is nothing of substance in the claim or defence
- The criterion for summary judgment is not one of probability: it is the absence of reality, on an objective standard
- A "realistic" defence is one that carries some degree of conviction. This means the claim or defence that is more than merely arguable
There must be an absence of a serious triable issue of fact or law.
It's not for determining points of law or fact which requires extensive argument and citation of an extensive number of legal authorities.
If the issues in dispute require more thorough exploration than was realistically possible at the hearing, then summary judgment is not the likely outcome.
Overall, it is a summary procedure for summary assessment of cases.
Summary Judgment Hearings
Summary judgment hearings should be listed for hours, not days.
Summary Judgment is not a procedure to:
- obtain an immediate or accelerated trial
- conduct a mini-trial or condensed trial to decide liability.
A mini-trial would typically involve:
- an extended hearing
- resolution of conflicts of evidence in the contents of witness statements and documentary evidence
- the court hearing and deciding complex issues of fact or law.
- end cases which raise important questions of public policy.
Mini-Trials and Standard of Evidence
In summary judgment applications, courts court is not attempting to fully and finally resolve the disputes. It's what you might call a preliminary assessment.
At the the trial, courts assess the evidence it is presented: which is on the balance of probabilities on the evidence presented, and reach findings of fact and law.
Summary Judgment hearings are not like that.
The court is not attempting to fully and finally resolve the disputes between the parties on the merits of the case.
To put it another way, courts do not have a procedure to decide disputes on the balance of probabilities at the outset of legal proceedings. That requires a trial, which comes at the end of legal proceedings.
Summary judgment is different. It's a summary - short and concise - procedure, at the beginning of legal proceedings.
In summary judgment applications, it's more whether:
- the evidence taken at its highest could succeed
- the defence raises "an unwinnable case where a continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides"
Where an application would involve prolonged argument it's likely that the court is likely to resist the temptation to hear it. It does happen though. Those cases tend to be reversed (ie overturned) on appeal.
That's because applications for summary judgment aren’t the place for it.
That's not to say hearings of summary judgment applications are rough and ready. They're not.
Courts are likely to:
- consider the inherent probabilities of statements made by witness against the documents and other evidence available at the hearing
- engage in an assessment of contradictions between what the respondent says, and what documents before the court say.
A court is not likely to take everything said by a respondent at face value. Especially if it doesn't tally with the evidence.
The contents of documents are likely to be given greater weight than what is alleged in a Statement of Case: particularly when the documents do not support what the respondent says in their witness statements.
- evaluate the case to ascertain whether the factual context and legal issues are straightforward, and cast those probabilities against the evidence.
It may be that the case is incapable of being challenged or defended.
- reject allegations disputed fact where oral evidence would serve no purpose at the trial . That is, if the statements of case doesn't deal with the legal issues or is irrelevant to deciding the legal issues.
- assess whether a witness should be permitted to give oral evidence to explain apparently damaging documents in context, and explain the circumstances in which they were made
- think twice before bringing a case to an end where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the perception of the evidence available, to a trial judge
Also, it may be inappropriate to award summary judgment in a case where the facts of the case and multiple causes of action are closely related
Testing of Evidence
Courts are likely to be all the more wary where the honesty of one of the parties has been called in to question. Cases of fraud usually call for cross-examination of witnesses: which means a trial is required to properly – and fairly - assess witnesses and the documentary evidence.
Whether or not material is likely to exist which would more fully inform a court at trial is a material factor, because it contributes to whether (or not) there is a real, as opposed to a fanciful prospect of success.
Preparation for Summary Judgment Hearing
Courts apply the Rule of Law.
Courts hear sustainable legal claims based in law and defences which are also based in – or recognised by – law.
The legal test is negative in the sense that it focuses on what is not sustainable on a legal and objective standard.
Court retain an overall discretion in applications for summary judgment: the law caters for cases which are not suitable for summary judgment, such as those which are complex or where evidence is likely to come out at a later date to be examined at the trial.
The Rule of Law
To properly defend an application for summary judgment, there are a few requisites which aren’t often mentioned.
It's advantageous to have them in the forefront of your mind in the larger context of legal proceedings:
- The Rule of Law
The law applies the Rule of Law to cases.
A case not recognised by law cannot be made the subject of a legal claim.
Likewise, defences not recognised by law can’t be used defend a valid and sustainable legal claim.
The hard truth is this:
This application of the Rule of Law applies regardless of how morally unfair the circumstances may seem to be.
- Facts of the Case
To prepare any Claim or Defence, and set it out in a Claim or Defence:
- the law should be known.
That’s the legal basis of the claim.
Each of the elements of the cause of action should have a realistic prospect of success
- the facts alleged must substantiate the legal basis of the claims made in the Statement of Case.
- the law should be known.
- The evidence in support of the claim or defence should be consistent with supporting the cause of action or the defence.
If it doesn’t there’s a problem.
A big problem.
And the last thing you want to do is make stuff up, resort to exaggeration, or bend the truth.
That's a slippery slope.
- advance the claim with a reasonable prospect of success; or
- defend it with a reasonable prospect of success.
All of that should be brought out clearly and concisely in summary form in a skeleton argument in time for the hearing.
Outcome: Orders on an Application
The outcome of a summary judgment application will be one of:
- Judgment in favour of the applicant
- Striking out or dismissal of the claim
- Dismissal of the application, or
- a conditional order.
When judgment is obtained, the successful applicant may enforce the judgment. it's likely to contain a costs order too.
When the sum of judgment is not quantified - known as an unliquidated sum - an order for another hearing - a disposal hearing - is listed for a judge to fix the sum of the damages payable.
Where the claimant has specified a liquidated sum in the Claim Form, the court has power to:
- order that the liquidated sum must be paid with judgment, or
- make an order for an interim payment – a part of the damages claimed. The amount will be near the bare minimum that the unsuccessful party will be the ordered to pay in the fullness of time in a disposal hearing.
Even if a summary judgment application is unsuccessful, the party successful defending the application may be ordered to:
- clarify its claim or defence by filing and serving an Amended Particulars of Claim or Defence within a relatively short period of time.
The purpose of doing so is primarily to make the amended Statement of Case comply with Part 16 of the Civil Procedure Rules:
to clarify the grounds of the claim or the defence.
- pay a sum into court where success on the claim or defence is improbable.
Amendments to Statements of Case
Respondents to summary judgment applications sometimes prepare draft Amended Particulars of Claim or Defences in advance of the hearing to regularise initial versions.
When applications to amend are made to introduce fresh claims or a new basis of claim, the court will assess the new claim or defence.
That assessment may include whether it has any real prospect of success.
If it does not, then the application will be refused on the same grounds of summary judgment: it would be a waste of time and money to allow it.
Summary Judgment Costs
As with all other applications in litigation, costs usually follow the event.
The unsuccessful party on the application will probably be ordered to pay the legal costs of the successful party.
Costs in summary judgment applications are almost invariably summarily assessed by the judge at the end of the hearing.
Unless the court orders otherwise, costs orders must be paid within 14 days of the Order.
And then if a party is successful defending the application, if it is ordered to replead its case (ie file and serve Amended Particulars of Claim or Defence), it may be required to pay the costs of the entire application.
That can prompt an early settlement of the litigation.
Appeals of Summary Judgment
The unsuccessful party has 21 days to file and serve an Appellant’s Notice, and with it many other documents to lodge an appeal.
It’s important to understand the role of appellant courts before bothering with an appeal. It is especially the case when it comes to challenge an order for summary judgment.
The approach of a court hearing an appeal has been summarised as follows:
[T]he decision whether or not to engage at all in the exercise of determining the case summarily before trial is a discretionary management power. If the court decides not to do so, that decision can only be challenged on appeal in the same limited circumstances as any other case management decision. […]
The appeal is nevertheless not a rehearing but a review. The degree of respect given by the appeal court to the first instance judgment is likely to depend on the reason for the order granting summary judgment.
If the reason turns on a pure point of law, without any material factual dispute, then the appeal court will simply decide whether the first instance decision was correct or incorrect.
The position may be different where the first instance judge has made an evaluative judgment on the facts likely to be established at trial or has made a multi-factorial decision […][T]he appeal court will interfere if satisfied that the first instance judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him or her.
Conducting an inappropriate mini-trial on disputed facts on a summary judgment application is an error of principle and, moreover, will usually lead to a conclusion that the first instance judge was acting outside the area of permissible reasonable disagreement in concluding that the respondent to the summary judgment application has no real prospect of success at a trial. (paragraph breaks added)
So clearly, an appeal court will enforce the purpose of summary judgment applications.
Courts of Appeal have special reservations about:
- interfering with discretionary decisions of the judges at first instance, and
- allowing fresh evidence on an appeal, which wasn't before the court at the previous hearing.
Summary Judgment applications are one of them.
Example Case of Summary Judgment:
Here are a few examples of clear cut cases of factual scenarios which are suitable - in principle - for summary judgement:
- Claims for payment of debts where the defence is unsustainable
- A limitations defence under the Limitations Act, applies so as to time bar a claim.
The issue could be made the subject of a preliminary issue or summary judgment, before substantial costs of disclosure and preparation of witness statements for trial, and the trial itself are incurred
- A breach of contract claim against a defendant was not a party to the contract (but bear in mind the Contract (Rights of Third Parties) Act
- Whether a condition precedent has been satisfied to bring a contract into effect
- Where a short point of interpretation of a contract is likely to determine the issue of liability
Summary Judgment is better suited for clear cut cases, where the legal or factual issues are narrow, and readily determined. Such as where:
- A claim is misconceived – ie the claimant thinks they have a legal claim, but either does not, or has not pleaded it as it should be in accordance with CPR 16, and the accompanying Practice Direction
- The defence does not disclose legal basis to defend the claim
- The documentary evidence for one party is overwhelming, in the sense that what the other party says in their statement of case can’t be sustained.
This is most obvious in cases where the applicable law attracts strict liability, and all of the elements of the law of the relevant cause of action are satisfied
Each party needs to be treated fairly in litigation.
Summary Judgment is one measure of what the justice system considers fair.
Although complex cases can be made the subject of summary judgment, they will be rare.
If relevant evidence is likely to be disclosed at a later stage, and the potential remains for orders for specific disclosure, it will be unsuitable. There is also the imperative of the justice system to test witnesses’ evidence by cross-examination.
If a party has a case which will fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim has some prospect of succeeding, the party should be afforded the opportunity to try their case.
Facing Up to a Summary Judgment Application?
The principles of summary judgment are well-established.
It’s the application of the legal principles which can present problems of focus.