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
Grounds CPR 24.2 - The court may give summary judgment if the respondent has:
(a) No real prospect of succeeding on or defending the claim AND
(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 summary judgment, 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: No Other Compelling Reason to Try the Case or Issue
The following may constitute compelling reasons:
(if they are proven, summary judgment not appropriate)
Need to investigate:
The respondent may need time to investigate the claim, not having had the opportunity to
do so, and such investigation might provide it with real prospects of success.
o E.g. if the respondent has been unable to contact a witness.
In the public’s interest
Difference in facts
Where one party holds all of the factual cards
Summary Judgment can be sought prior to disclosure. It is therefore possible that, in
certain cases, 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:
Summary judgment 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:
Summary judgment 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 Summary Judgment (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
1
, DR WS6
Contents of The application should include:
the Application notice, form N244.
Application Supporting evidence – on form or on witness statement (from client, usually)
Draft order.
Fee – currently £255.
Procedure C cannot apply for summary judgement until after D has filed AofS or defence
If they miss deadline, C can apply for default judgement
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)).
The respondent should file and serve evidence at least seven days before the hearing (CPR
24.5(1)).
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)).
The court may Judgement on the claim
order The striking out/dismissal of the claim
The dismissal of the application
E.g when there is a conflict of the evidence of two credible witnesses
A conditional order (continue the claim but pays money to the court pending final outcome)
Claim/defence may succeed but it is unlikely to do so
D’s claim weak/D acted dishonestly in litigation
Interim payments
Part 25 CPR
An interim payments order requires a party to make an advance payment of damages, a debt
or other sum (excluding costs).
The idea behind this power is that a claimant who has a strong case can avoid the financial hardship of any delay
between commencing the claim and its final determination.
Making an interim application
Procedure The claimant may NOT make an application until after the time for acknowledging service.
The claimant should first try to negotiate with defendant or defendant’s insurance company.
The claimant MAY make more than one application.
An application notice must be:
o Supported by evidence.
o Served at least 14 days before the hearing.
If the respondent wishes to rely on written evidence, this must be:
o Served at least 7 days before the hearing.
If the applicant wishes to use evidence in reply, this must be:
o Served at least 3 days before the hearing.
Evidence The application must be accompanied by evidence of:
The amount of the payment being sought.
The items or matters in respect of which the interim payment is sought.
The likely amount of the final judgment.
The reasons for believing the conditions for an interim payment are satisfied.
Any other relevant matters.
2
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
Grounds CPR 24.2 - The court may give summary judgment if the respondent has:
(a) No real prospect of succeeding on or defending the claim AND
(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 summary judgment, 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: No Other Compelling Reason to Try the Case or Issue
The following may constitute compelling reasons:
(if they are proven, summary judgment not appropriate)
Need to investigate:
The respondent may need time to investigate the claim, not having had the opportunity to
do so, and such investigation might provide it with real prospects of success.
o E.g. if the respondent has been unable to contact a witness.
In the public’s interest
Difference in facts
Where one party holds all of the factual cards
Summary Judgment can be sought prior to disclosure. It is therefore possible that, in
certain cases, 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:
Summary judgment 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:
Summary judgment 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 Summary Judgment (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
1
, DR WS6
Contents of The application should include:
the Application notice, form N244.
Application Supporting evidence – on form or on witness statement (from client, usually)
Draft order.
Fee – currently £255.
Procedure C cannot apply for summary judgement until after D has filed AofS or defence
If they miss deadline, C can apply for default judgement
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)).
The respondent should file and serve evidence at least seven days before the hearing (CPR
24.5(1)).
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)).
The court may Judgement on the claim
order The striking out/dismissal of the claim
The dismissal of the application
E.g when there is a conflict of the evidence of two credible witnesses
A conditional order (continue the claim but pays money to the court pending final outcome)
Claim/defence may succeed but it is unlikely to do so
D’s claim weak/D acted dishonestly in litigation
Interim payments
Part 25 CPR
An interim payments order requires a party to make an advance payment of damages, a debt
or other sum (excluding costs).
The idea behind this power is that a claimant who has a strong case can avoid the financial hardship of any delay
between commencing the claim and its final determination.
Making an interim application
Procedure The claimant may NOT make an application until after the time for acknowledging service.
The claimant should first try to negotiate with defendant or defendant’s insurance company.
The claimant MAY make more than one application.
An application notice must be:
o Supported by evidence.
o Served at least 14 days before the hearing.
If the respondent wishes to rely on written evidence, this must be:
o Served at least 7 days before the hearing.
If the applicant wishes to use evidence in reply, this must be:
o Served at least 3 days before the hearing.
Evidence The application must be accompanied by evidence of:
The amount of the payment being sought.
The items or matters in respect of which the interim payment is sought.
The likely amount of the final judgment.
The reasons for believing the conditions for an interim payment are satisfied.
Any other relevant matters.
2
