DR WS6
Tactical Applications and Settlement
Tactical applications
Summary judgment
Part 24 CPR
Summary judgment is a procedure by which the court can decide a claim or a particular issue without a trial.
The existence of Summary Judgment acknowledges that certain cases need not run to trial; the aim of the procedure
is to facilitate a quick determination of a case, avoid long-running litigation and save costs where a trial is
unnecessary.
Making a summary judgment (SJ)
Grounds CPR 24.2 - The court may give SJ if the respondent has:
ü (a) No real prospect of succeeding on or defending the claim AND
ü (b) There is no other compelling reason why the case or issue should be disposed of at a trial.
1: No Real Prospect of Succeeding on or Defending the Claim
® In order to defeat an application for SJ, the respondent needs more than just an arguable case.
® It has to be one that has a "real, as opposed to a fanciful, chance of winning" (Swain v Hillman [1999] EWCA
Civ 3053).
• Commonly, applications will focus on (para 1.3, PD24):
o A point of law which means the respondent has no real prospects of succeeding in his claim.
o Evidence which can reasonably be expected to be available at trial, or the lack of it, which means the
respondent has no real prospects of succeeding e.g. where it is clear beyond question that the
statement of case is contradicted by all the documents.
o A combination of these.
2: Compelling Reason to Try the Case or Issue
® Need to investigate:
Compelling
reasons: • The respondent may need time to investigate the claim, not having had the opportunity to do so, and
(If they are such investigation might provide it with real prospects of success. E.g. if the respondent has been unable
proven, then to contact a witness.
SJ is not ® Difference in facts
appropriate) ® Where one party holds all of the factual cards
• SJ can be sought prior to disclosure. It is therefore possible that one party will be in possession of the
majority of the evidence before they are under an obligation to disclose.
• Where the facts are wholly in the applicant's hands and it would be unjust to enter judgment without
giving the respondent the opportunity to establish a defence in the light of disclosure, or after serving a
request for further information (Harrison v Bottenheim (1878) 26 WR 362).
® Questionable conduct by the applicant:
• SJ has been refused where the applicant's conduct can be questioned, for instance where they are being
dishonest or devious (Miles v Bull [1969] 1 QB 258).
® The case is particularly complex:
• SJ is not intended to be a substitute for a trial in which the court can make a detailed investigation of all
of the issues. Therefore particularly complex claims are less suited to SJ (Three Rivers District Council v
Bank of England (No. 3) [2001] UKHL 16).
® The case is on a novel point of law for which there is little prior authority.
• Swain v Hillman [1999] EWCA Civ 3053
Contents of The application should include:
the ü Application notice, form N244 + Draft Order + Fee (Currently £255)
Application ü Supporting evidence – on form or on witness statement (from client, usually)
Procedure Ø The application notice and evidence should be served on the opponent at least 14 days before the hearing
unless this is varied by a practice direction or the court (CPR 24.4(3)).
Ø The respondent should file and serve evidence at least seven days before the hearing (CPR 24.5(1)).
Ø If the applicant wishes to respond to the respondent's evidence, he should do so at least three days before
the hearing (CPR 24.5(2)).
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Tactical Applications and Settlement
Tactical applications
Summary judgment
Part 24 CPR
Summary judgment is a procedure by which the court can decide a claim or a particular issue without a trial.
The existence of Summary Judgment acknowledges that certain cases need not run to trial; the aim of the procedure
is to facilitate a quick determination of a case, avoid long-running litigation and save costs where a trial is
unnecessary.
Making a summary judgment (SJ)
Grounds CPR 24.2 - The court may give SJ if the respondent has:
ü (a) No real prospect of succeeding on or defending the claim AND
ü (b) There is no other compelling reason why the case or issue should be disposed of at a trial.
1: No Real Prospect of Succeeding on or Defending the Claim
® In order to defeat an application for SJ, the respondent needs more than just an arguable case.
® It has to be one that has a "real, as opposed to a fanciful, chance of winning" (Swain v Hillman [1999] EWCA
Civ 3053).
• Commonly, applications will focus on (para 1.3, PD24):
o A point of law which means the respondent has no real prospects of succeeding in his claim.
o Evidence which can reasonably be expected to be available at trial, or the lack of it, which means the
respondent has no real prospects of succeeding e.g. where it is clear beyond question that the
statement of case is contradicted by all the documents.
o A combination of these.
2: Compelling Reason to Try the Case or Issue
® Need to investigate:
Compelling
reasons: • The respondent may need time to investigate the claim, not having had the opportunity to do so, and
(If they are such investigation might provide it with real prospects of success. E.g. if the respondent has been unable
proven, then to contact a witness.
SJ is not ® Difference in facts
appropriate) ® Where one party holds all of the factual cards
• SJ can be sought prior to disclosure. It is therefore possible that one party will be in possession of the
majority of the evidence before they are under an obligation to disclose.
• Where the facts are wholly in the applicant's hands and it would be unjust to enter judgment without
giving the respondent the opportunity to establish a defence in the light of disclosure, or after serving a
request for further information (Harrison v Bottenheim (1878) 26 WR 362).
® Questionable conduct by the applicant:
• SJ has been refused where the applicant's conduct can be questioned, for instance where they are being
dishonest or devious (Miles v Bull [1969] 1 QB 258).
® The case is particularly complex:
• SJ is not intended to be a substitute for a trial in which the court can make a detailed investigation of all
of the issues. Therefore particularly complex claims are less suited to SJ (Three Rivers District Council v
Bank of England (No. 3) [2001] UKHL 16).
® The case is on a novel point of law for which there is little prior authority.
• Swain v Hillman [1999] EWCA Civ 3053
Contents of The application should include:
the ü Application notice, form N244 + Draft Order + Fee (Currently £255)
Application ü Supporting evidence – on form or on witness statement (from client, usually)
Procedure Ø The application notice and evidence should be served on the opponent at least 14 days before the hearing
unless this is varied by a practice direction or the court (CPR 24.4(3)).
Ø The respondent should file and serve evidence at least seven days before the hearing (CPR 24.5(1)).
Ø If the applicant wishes to respond to the respondent's evidence, he should do so at least three days before
the hearing (CPR 24.5(2)).
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