Summary Judgment CPR
Through the process of a summary judgement, a claim may be resolved without going to trial. Under Civil Procure Rules Part 24, an applicant may be granted judgement in a case. Other significant rules to consider include CPR 3.14, which outlines the court's inherent authority to issue orders on its own initiative, and CPR 1.4, which outlines the Overriding Objective.
Application for Summary Judgment
You have many alternatives for responding whether you are served with a claim or if you have launched a claim and are served with a defence. Considering whether the case qualifies for summary judgement as an alternative to trying to resolve the claim via a trial is one of these choices. The benefits of applying for a summary judgement are clear to the party considering it: financial savings, prompt resolution of a case that could drag on for months or even years, early favourable judgement, and the ability to put an end to frivolous or vexatious claims.
The other party will have been compelled to present its case and supporting documentation early on, forcing the other party to "show its hand," and it sends a message that the matter will be vigorously pursued or defended. Even if the application is denied, it may result in a tactical advantage and save time. According to Hobhouse LJ in D G Finance Ltd v. Scott and others [1995] (unreported), it would even be feasible to file several applications for Summary Judgement throughout the course of a Claim:
“A second application may be entertained where, since the previous unsuccessful application, there has been some change in the proceedings which has given rise to a new situation, not covered by the decision on the earlier application, sufficiently cogent to justify the further application.”
Although there are many similarities between a Summary Judgement claim and an application to strike out a claim where there is no case to answer, they are distinct. In the event that the strike out application is denied but the summary judgement motion is granted, it could be prudent to consider filing both applications simultaneously from a tactical standpoint.
CPR 24 states: “The Summary Judgment Procedure is set out in CPR Part 24 and further guidance on practice is contained within Practice Direction 24.”
CPR 24.1 states: “This Part sets out a procedure by which the court may decide a claim or a particular issue without a trial.”
Grounds for Summary Judgment CPR 24.2
The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
“(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a 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)
Who may apply for Summary Judgment
Both claimants and defendants may use the Application for Summary Judgement process, and that the judgement order may be based on the whole claim or on a specific "issue" (portion) of the claim. If a claimant files a spurious claim against someone alleging breach of contract with a tort element, the court may grant summary judgement on the breach of contract claim (for instance, if it is determined that no valid contract exists) while allowing the tort claim to proceed on its own.
“No real prospect” (CPR 24.2(a))
Together, CPR 24.1 and 24.2 detail the requirements that must be met before a summary judgement may be issued. Under CPR 24, the court has the authority to issue a summary judgement if it is convinced that either the defendant or the claimant has no genuine chance of successfully defending the claim (r24.2(a)(ii), or prevailing on the claim itself (r24.2(a)(i)). The person making the claim has the responsibility of providing evidence. This burden of proof is not the same as the balance of probability that would be used at trial. In addition, for a Respondent to be successful in preventing an application, they need to demonstrate that the application lacks "prospect," which means there is a possibility that they will be successful. Again, the objective of the application is not to conduct a mini trial, thus the Court does not need to be convinced that the Defendant would likely win. However, the Court does need to be convinced that there is a "real" likelihood, which means that it is not one that is false, fanciful, or unreal.
The case of Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550 [2001] the court determined that during an application for summary judgement, it is essential for the court to consider the witness testimonies and the probable availability of evidence during the trial. Nevertheless, it is vital that the level of evidence used does not adhere to the trial's need, specifically the balance of probability. The appropriate examination included determining the presence of a genuine likelihood of achieving a favourable outcome.
The case of Three Rivers DC v Bank of England [2001] UKHL 16 established, upon appeal, that cases of a highly complicated nature that require the presentation of oral evidence at trial are not appropriate for summary disposition. The court is required to consider both the evidence now available to the parties and the information that is expected to become available after the disclosure and exchange of witness statements. The determination of whether a claim lacks a genuine likelihood of success must be made in consideration of the overriding objective. The term "real" prospect of success refers to possibilities that go beyond being just ‘fanciful’.
In the case of Swain v Hillman [2001] 1 All ER 91, it was determined that the trial judge should be responsible for considering the particular facts of the case, rather than the summary judgement application. It was also concluded that the correct disposition of an issue under CPR Pt 24 does not require the judge to conduct a mini trial. In the case of Sharma v Jay [2003] EWHC 1230 (QB), it was determined that while a judge is not permitted to conduct a mini trial during an application for summary judgement, it is within the judge's purview at the interlocutory stage to make unfavourable factual determinations against the party against whom summary judgement is sought. This is permissible if the judge believes that, based on the highest interpretation of the evidence, a jury properly instructed would be unable to find facts favouring that party. In the case of Wrexham Association Football Club Ltd v Crucialmove Ltd [2006] EWCA Civ 237, it was determined by the Judge that it is possible to establish findings of ill faith via a summary judgement application, as long as all the necessary evidence required for the Judge to make such a determination is accessible throughout the application process.
CPR 24.2(b)
When considering whether to give Summary Judgement, the Court must further ensure that there are “no other compelling reason why the case or issue should be disposed of at a trial” (CPR 24.2(b)). (It is important to acknowledge that the condition for no possibility of success and this requirement are not logically connected, despite the use of the conjunction "and" by CPR to link them. Instead, the former serves as the foundation for granting an application for Summary Judgement, while the latter serves as a reason for denying it.
When CPR originally went into effect, the language of r24.2(b) created problems since it only mentioned a "reason why the case should go to trial." The wording was transferred to CPR from the previous High Court rules on handling Summary Judgement applications (RSC Ord 14; 14A and Ord.18 r.19). These rules were deemed to be clearer because they more explicitly stated that an application for summary judgement should be denied where the defendant had persuaded the court that there was a matter to be tried or where a trial was necessary for some other reason. This has led to criticism of the drafting of Part 24 for including rule 24.2(b) without further clarification. Case law served to further elucidate and clarify this. It was unclear at the time how CPR provisions 24.1 and 24.2 would function when considering both requirements combined, though, as it was obviously not the draftsman's intention for a summary judgement application to be rejected in cases where it was found that there was a "reason" to proceed to trial even though there were no realistic prospects for the case. For this reason, "compelling" was added before "reason" in the Civil Procedure (Amendment No. 3) Rules 2000. The inclusion undoubtedly raises the bar for what constitutes a "reason," yet it is still debatably uncertain.
With the adoption of CPR Amendment Rules No. 3 in 2000, case law has established what is deemed compelling. This usually has to do with multi-party cases in which a summary judgement would not be appropriate. In Bouygues (UK) Ltd v. Dahl-Jensen (UK) Ltd [2000] B.L.R. 522, Buxton L.J. decided that, in cases where there were latent and crossclaims between the parties, the claimant company's liquidation was a strong cause to deny Summary Judgement. Like this, summary judgement was deemed improper in Iliffe v. Feltham Construction Ltd [2015] EXCA Civ 71 against a defendant where comparable matters were still for trial between the defendant and another party in an ongoing supplementary action.
Chief Master March expressed his doubts in Commerz Real Investmentgesellschaft mbh v. TFS Stores Ltd [2021] EWHC 863 (Ch) regarding the authority handling the old RSC Order 14 (replaced by CPR 24) regarding the appropriate method for determining whether there was another compelling reason to try the case or issue. This was because the word "compelling" was added, which was obviously meant to restrict the very wide discretion that was previously applicable under the pre-CPR rules.
The respondent may still avoid summary judgement if it can demonstrate that there is another compelling reason for a trial, such as the need for more time to thoroughly examine the claim or the applicant's actions. However, this requirement cannot be used merely to try to circumvent the application of the "no real prospect" rule in r24.2(a).
CPR 24.2 refers to an "issue" that is a component of a claim, which may be either a separate element of the proceedings or a portion of a single claim. To determine such a claim, or a portion of it, a trial would be required to rule on several factual or legal issues, none of which are at issue here. It is not appropriate for summary judgement to determine an issue before trial if doing so only results in one fewer issue to be tried (ADL Advanced Contractors Ltd v. Patel [2021] EWHC 220 (Comm), as discussed in Legal Update; the scope of CPR 24 is narrow and does not allow for determining every issue).
the law separate from evidence
If a summary judgement application raises a matter of law and the judge has all the facts necessary to decide, the issue may be raised at the application stage and a decision rendered. The evidence is regarded as distinct from this query. A respondent may very well argue that there is still material to be discovered, in which case summary judgement would not be granted. This is pertinent, but before considering the evidence, the Court will address legal issues and the pleading's interpretation. Saying that "more evidence needs to be disclosed" is insufficient from a respondent. According to Lord Hobhouse, in Three Rivers DC v. Bank of England (No. 3) [2001] All E.R. 513:
“if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better.”
Orders the Court may make
PD24, Paragraph 5.1 sets out the orders that a Court may make as follows:
5.1 The orders the court may make on an application under Part 24 include:
(1) judgment on the claim,
(2) the striking out or dismissal of the claim,
(3) the dismissal of the application,
(4) a conditional order.
5.2 A conditional order is an order which requires a party:
(1) to pay a sum of money into court, or
(2) to take a specified step in relation to his claim or defence, as the case may be, and provides that that party’s claim will be dismissed or his statement of case will be struck out if he does not comply.
Conclusion
A dispute may be resolved by the process of summary judgement, which eliminates the necessity for a trial. It may be granted on its own initiative by the court or in response to a request made by the defendant or the claimant. The writing is on the wall because it is intended to prevent parties from pursuing claims or defences that have little chance of success. The Court is advancing the Overriding Object of attaining justice, cutting expenses, and not wasting the Court's time and resources by awarding the Summary Judgement when it is appropriate to do so. Summary judgement is a tactical tool that may be very useful in court, but parties who want to use it have to be cautious since the court might impose an adverse costs order on them if they lose.
The Civil Litigation Handbook
If you want to read more above civil litigation and any matters of dispute resolution, have a look at the Civil Litigation Handbook. The book is written and structured in an approachable manner. It highlights the crucial steps in the procedure and provides practical guidance on how to complete them. The information is organised and written such that a final-year law student or an inexperienced solicitor or barrister can easily grasp how the knowledge they have acquired on their law course.
