Summary judgment Flashcards
(18 cards)
what is the purpose?
enables the court to decide a claim or issue without trial.
when can an SJ be made?
following an application or of court’s own initiative (latter very rare)
C cannot make an application unless D has filed an AoS or defence (unless the CPR/court permits otherwise)
what happens if C files an application before D has filed a defence?
if C files the application before D has filed a defence, D need not file the defence before the hearing
what information must be addressed within the application?
the N244 or w/s must address:
o Statement that it is an application for SJ
o Identify point of laws/documents relied upon
o State they believe R has no real prospect of success + no reason why disposal of the claim/issue should wait until trial
o Draw R’s attention to their right to rely on evidence to oppose
how is the application made and what must be filed?
Applicant must f&s (must be made on notice):
o Application notice
o Evidence
o Draft order (should inc. provision for costs otherwise not payable)
o Court fee
what are the time limits for service?
o R must be given 14 days’ notice of the hearing
o R must f&s any written evidence 7 days before the hearing
o A must f&s any written evidence 3 days before the hearing
on what grounds can SJ be given?
SJ can be given against the whole claim or on an issue if:
o The other party has no real prospect of success; and
o There is no other compelling reason for trial
what are the key case law points regarding no prospect of success?
o Prospect of success must be more than fanciful i.e. the prospects need not be high, but the claim must be realistic - must be more than merely arguable
o Applicant must provide evidence to prima facie support their case
give examples of compelling and not compelling reasons for trial
Key case law points:
Possible compelling reasons:
* There are circumstances that ought to be investigated (i.e. claim is complicated/technical, need to hear from/track down Ws)
* The case may have wider ramifications (i.e. not just on C)
* Applicant’s conduct is an abuse of process
Not compelling reasons:
* Allegations of bad faith/fraud
* Cause financial difficulty
what is the court’s role when deciding an SJ application?
Court is not conducting a mini-trial – not dealing with overall liability but why the claim should/should not continue
explain the evidential burden of the applicant and respondent
the applicant must provide evidence to support that there is a no prospect of success and not a compelling reason
the evidential burden then shifts to the respondent, but to defeat the application they only need to prove one of the limbs - i.e. that there is either a compelling reason to hear the case or their claim/defence has a reasonable prospect of success
what orders might the judge make?
- Judgment on claim
- Strike out or dismissal of claim
- Application dismissed
- Conditional order
explain judgment on claim and the effect on costs
C successful. C gets remedy, interest + costs
o Spec. claim = Part 45 fixed costs but can ask for summary assessment
o Unspec. claim = disposal hearing + summary assessment
explain strike out or dismissal of claim and the effect on costs
D successful. C pays D costs.
explain application dismissed and the effect on costs
matter proceeds to trail.
general position is that the loser pays winner’s costs.
explain a conditional order and the effect on costs
court considers there is an improbable prospect of success (rather than no real prospect). Order will specify a condition (i.e. payment of money) and a consequence for failure to comply (i.e. strike out)
usually costs in case ordered
if a party is making an SJ application, what other application is often made at the same time?
Common to make an application for SJ + strike out SOC at the same time.
NB: court can also make on its own initiative
what are the grounds for strike out?
o SOC discloses no reasonable grounds for bringing/defending the claim;
o SOC is an abuse of the court’s process; or
o Failure to comply with a rule, practice direction or order
