SUMMMARY JUDGMENT

R 24.1 – Scope of this Part

This Part sets out a procedure by which the court may decide a claim or a particular issue without a trial.

R 24.2 – Grounds for summary judgment

The court may grant summary judgment against the claimant or defendant on the whole of the claim or a particular
issue if it considers:

• that the claimant has no real prospect of succeeding on the claim or issue, or

• that the defendant has no real prospect of successfully defending the claim or issue

• and in either case

• there is no other compelling reason why the case or issue should be disposed of at trial.

(Rule 3.4 makes provision for the court to strike out a statement of case or part of a statement of case if it appears that
it discloses no reasonable grounds for bringing or defending a claim.)

Commentary

24.2.3 – meaning of real prospect of succeeding/successfully defending

- Real prospects of success has the same meaning here as it does for setting aside default judgment. What was a
very low bar in order to persuade the court to set aside default judgment and allow the claim to continue, is
now a high bar. The applicant must show that the respondent has a case with no degree of conviction or that it is
only merely arguable.

- Court must not conduct a mini-trial. However, some analysis is still required. In some cases it will be clear that there
is no real substance of the claim. The court must not only take into account the actual evidence pleaded, but also take
into account the evidence that can reasonably be expected to be available at trial. In King v Stiefel, it was concluded
that the court is not barred from evaluating evidence in summary judgment. The court will bear in mind the present
evidence and the potential for other evidence to be available at trial which is likely to bear on the issues.

- Where reasonable grounds exist for believing that a fuller investigation into the facts will alter or add to the evidence,
the judge should be hesitant to make final decision without trial.

- If the application raises a short point of law or construction and the court is satisfied that it has before it all the
evidence necessary for the proper determination of the question, then a decision should be made. For example, the
respondent’s case is bad in law, he will in truth have no real prospect in succeeding or defending the claim. The term
‘short point of law’ may relate to the length of the hearing that will be required and the complexity of the matrix of fact
the court will have to consider.

- Where the case is likely to turn on XX (cross examination) of lay or expert witnesses, there will be no summary
judgment.

24.2.4 – meaning of ‘no other compelling reasons for a trial’

- The fact that the claimant company is in liquidation, is a compelling reason to refuse summary judgment.

- Where there are multiple parties (see SA9) and the issues to be determined between the defendant and other parties
are the same, there should be no summary judgment.

- Where the terms under consideration are standard terms in a contract and so a decision might well apply to
numerous contracts, meant that summary judgment was not appropriate.

- Where there are allegations that someone has acted unconscionably and judgment should be at a public trial, no
summary judgment will be granted.

- In case of libel, slander, malicious prosecution or false imprisonment the respondent may have a right to trial by jury.

24.2.5 – Burden of Proof

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- The overall burden of proof rests on the applicant. The applicant must first identify concisely any point of law or
provision in a document on which they rely, and then satisfy the requirements under r 24.2. The essential ingredient is
the applicant’s belief that the respondent has no real prospect of success and there is no other reason for trial.

- If the applicant for summary judgment adduces credible evidence in support of their application, the respondent
becomes subject to an evidential burden or proving some real prospect of success or some other reason for trial.

- The standard of proof required of the respondent is not high. It suffices merely to rebut the applicant’s statement of
belief. When deciding whether the respondent has some real prospect of success the court should not apply balance
of probabilities on the evidence presented.

24.2.6 – Effect of a set off or counterclaim

What about set offs and counterclaims? The key message is that if a defendant has a counterclaim which
amounts to a set off, summary judgment will not be granted. But if it’s a simple counterclaim this will not prevent
summary judgment. So you, therefore, need to know what amounts to a set off. CPR r.16.6 provides that a defendant
must include its claim for a set off in its defence. Some guidance can be found in the WB commentary paragraphs, but
the clearest place is in Chapter 14 of APA Civil Procedure.

The categories of set off are found both in statute and at common law. It is always a claim for money and there are
five categories:

• Mutual debts owed between the claimant and defendant, even if they arise from wholly unconnected subject
matters.

• A claim for damages for breach of an implied term as to sale of goods (under the Sale of Goods Act 1979
for commercial cases and the Consumer Rights Act 2015 for consumer cases) against a claim for payment of
the goods.

• A claim for poor workmanship against a claim for the price of the work under the Supply of Goods and
Services Act 1982.

• A claim for breach of the covenant of repair under a lease against a claim by the landlord for arrears of rent.

• An equitable set off, which arises where the counterclaim is so closely connected with the claim that it would
be manifestly unfair to allow the claim to proceed without it being considered. This close connection may exist
where there are competing claims arising out of the same contract between the same parties or a series of
linked transactions between the same parties.

On the other hand, as I said, if the counterclaim is not a set off, then summary judgment will be granted, but its
enforcement is likely to be stayed, pending the determination of the counterclaim.

24.2.7 – Not set off in action on dishonoured bill or cheque

Under general commercial law principles, a cheque is regard as the equivalent of cash. Accordingly, on a claim for
non-payment of a cheque, the court will grant summary judgment without considering any counterclaim or set off
which the defendant might assert which arises in respect of the underlying contract which resulted in the payment
being made or which is independent of it (for example such as a claim for breach of contract, or misrepresentation
inducing the contract). This rule (the cheque rule that is) applies equally to promissory notes, bill of exchange or direct
debits.

R 24.3 – Types of proceedings in which summary judgment is available

(1) The court may give summary judgment against a claimant in any type of proceedings.

(2) The court may give summary judgment against a defendant in any type of proceedings except proceedings for
possession of residential premises against—

(a) a mortgagor; or
(b) a tenant or contract-holder or a person holding over after the end of the tenancy whose occupancy is
protected within the meaning of the Rent Act 1977, the Housing Act 1988 or the Renting Homes (Wales) Act
2016.

R 24.4 - Procedure

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(1) A claimant may not apply for summary judgment until the defendant against whom the application is made has
filed—

(a) an acknowledgment of service; or

(b) a defence,

unless—

(i) the court gives permission; or

(ii) a practice direction provides otherwise.

(Rule 10.3 sets out the period for filing an acknowledgment of service and rule 15.4 the period for filing a defence.)

(1A) In civil proceedings against the Crown, as defined in rule 66.1(2), a claimant may not apply for summary
judgment until after expiry of the period for filing a defence specified in rule 15.4.

(2) If a party applies for summary judgment before a defendant has filed a defence, the defendant by or against whom
the application is made need not file a defence before the hearing.

(3) Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the
court’s own initiative) must be given at least 14 days’ notice of—

(a) the date fixed for the hearing; and

(b) the issues which it is proposed that the court will decide at the hearing.

(4) A practice direction may provide for a different period of notice to be given.

CPR 24.5 – Evidence for the purpose of a summary judgment hearing

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he
must—

(a) file the written evidence; and

(b) serve copies on every other party to the application,

at least 7 days before the summary judgment hearing.

(2) If the applicant wishes to rely on written evidence in reply, he must—

(a) file the written evidence; and

(b) serve a copy on the respondent,

at least 3 days before the summary judgment hearing.

(3) Where a summary judgment hearing is fixed by the court of its own initiative—

(a) any party who wishes to rely on written evidence at the hearing must—
(i) file the written evidence; and
(ii) unless the court orders otherwise, serve copies on every other party to the proceedings,

at least 7 days before the date of the hearing;

(b) any party who wishes to rely on written evidence at the hearing in reply to any other party’s written evidence
must—
(i) file the written evidence in reply; and
(ii) unless the court orders otherwise serve copies on every other party to the proceedings,

at least 3 days before the date of the hearing.

(4) This rule does not require written evidence—

(a) to be filed if it has already been filed; or

(b) to be served on a party on whom it has already been served.

R 24.6- Court’s powers when it determines a summary judgment application

When the court determines a summary judgment application it may—

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 (a) give directions as to the filing and service of a defence;
(b) give further directions about the management of the case.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order.)

We will now start with the orders the court can make.

You will find there’s a list in PD 24 para 5.

• Judgment on the claim (which means summary judgment has been granted).
• Striking out or dismissal of the claim (if the defendant had applied for summary judgment, this means that it
has succeeded as the claim is no more).
• Dismissal of the application (which means that the summary judgment application has not been successful).
• Conditional order (please see the section below headed “Conditional orders”).
• Consequential orders (The court will also make directions for the filing and service of a defence and evidence
as appropriate: r.24.6.) It also has power to set aside a summary judgment order made on the non-attendance
of a respondent PD 24 para 8.

Commentary

24.6.6 – A conditional Order

Conditional Orders: these are covered by PD24 para 4 and are for the situation where the court is in two minds
about whether to let the case proceed to trial or not. If so, it must err on the side of caution and refuse the summary
judgment application. This is the position if the court considers only that it is possible that a defence may succeed,
but improbable. The court can make two types of orders. Order a party to pay money into court, or require them to
take a particular step in relation to its claim or defence. This will be expressed with a time limit and the consequences
of non-compliance. E.g. the defendant must pay £33,000 into court by 4.30pm on Friday (and then a specific date), or
the defendant must file a Defence setting out its case in full and responding in detail to the Particulars of claim. Failing
compliance, judgment will be entered for the applicant i.e. summary judgment on the application will be granted.

24.6.7 – Conditional Orders for payment into court or security for costs

In Gama Aviation, the CA held that five principles applied when considering whether a conditional order for payment
into court or security for costs should be made on an application for summary judgment:

a. If the D has a real prospect of successfully defending the claim, no such order is required to be made.

b. The burden is on the D to establish on the balance of probabilities that it would be unable to comply with the
condition.

c. In order to discharge the burden D must show, not only that it does not itself have the necessary funds, but that no
such funds would be made available to it, whether by its owner or by some other closely associated person. If it is a
Corporate Defendant, it is important to keep well in mind that the question is not whether the company’s shareholders
can raised money but whether the defendant company has established that funds to make payment will not be made
available to it by its beneficial owners.

d. There is importance of a claimant giving notice to a defendant that it may seek a conditional order, so that the
defendant can adduce evidence of its potential financial ability (or lack of ability) to meet a condition

e. The courts power to make a condition order on a summary judgment is not limited to a case where it is improbable
that the defence will succeed. Such an order may be appropriate where there is a history of failures to comply with
court orders.

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