In the latest entry in our guide to cutting your legal bills to the bone, Claire McNamara explains why and when and how you should apply for a summary judgment
How do I … obtain summary judgment?
In these cash-strapped times litigation is probably the last thing on your mind. But sometimes you may not have any choice. Used properly, the summary judgment procedure can make court proceedings as pain-free as possible, both in terms of time and money.
What is summary judgment and when is it suitable?
It is a procedure for obtaining a court judgment without the need to go to a full trial, although there will be a hearing. You can apply to the court for one wherever your opponent’s case is hopeless. It can be used in all types of cases, except some housing and shipping claims, and whether you are the claimant or the defendant. Claimants often apply for a summary judgment to enforce an adjudicator’s decision.
What test will the judge apply?
Judges can grant summary judgment where the responding party has no real prospect of successfully bringing or defending its claim, and there is no other compelling reason why the matter should be heard at a full trial. (Compelling reasons include the right to trial by jury for libel, slander, malicious prosecution or false imprisonment.)
What is so good about summary judgment?
The advantages are speed and cost. If successful, you avoid incurring the costs of going to full trial, which will not be entirely recoverable, even if you are successful. The flipside is that, if unsuccessful, you will have to pay your opponent’s costs of preparing for and attending the summary judgment hearing, and you will still have to go to trial.
Are there any alternatives to summary judgment?
An alternative is to apply for your opponent’s statement of case to be struck out as disclosing no reasonable grounds for bringing or defending a claim, or as an abuse of process, in accordance with the court’s case management powers. An application for strike out can be made at the same time as your application for summary judgment.
How should I apply for summary judgment?
If you are the claimant, you must wait until the defendant has filed either an acknowledgement of service or a defence to your claim. Make the application as soon as possible after that.
You will need to attach written evidence to the application. The burden of proving that your opponent has no reasonable prospect of success is on you, as the applicant. Your evidence would usually be a witness statement setting out the reasons why you consider that your opponent has no realistic prospect of succeeding in its claim, and that you are aware of no other compelling reason why the case should be heard at trial. You will need to sign a statement at the end of your witness statement confirming that its contents are true. You would usually attach a draft of the order you want the court to make.
Issue the application in the court where the claim was issued, and pay the appropriate fee. A hearing time and date will be fixed, usually for one day or less. Serve the evidence on your opponent.
What happens next?
Your opponent has until seven days before the hearing to put in its evidence in response. If the responding party is the defendant, and has not yet submitted its defence, it should include a draft defence with its evidence.
The applicant can put in further evidence in reply three days before the hearing and will provide the court with bundles of agreed documents for the hearing. A day before the hearing the parties will submit details of the legal costs of their application and may also submit short summaries of their cases (called skeleton arguments) to the judge.
What happens at the hearing?
The judge will consider the evidence, but will not carry out a mini-trial, and the parties will not be able to rely on spoken evidence unless the judge allows. The judge will need to be convinced on the basis of the evidence that the test for granting summary judgment has been satisfied.
What happens if I win the application?
If you are successful the judge will probably make an order in your favour for judgment against your opponent, and may also make a decision about the level of your costs your opponent must pay. Always ask the judge to award you the costs of your application, since otherwise fixed costs may apply, which are very low.
And if I lose?
If the judge orders that the matter must proceed to full trial, you have lost the application. The judge may order you to pay your opponent’s legal costs. You can ask the judge to attach conditions to the claim proceeding to trial (such as your opponent paying money into court) and for directions for the future conduct of the trial, for example when the defence must be served.
This article was published under the headline: ’Let’s get this over with’
Claire McNamara is a principal knowledge development lawyer in the construction group of Berwin Leighton Paisner