#10370 - Summary Judgment - BPC Civil Litigation

SUMMARY JUDGMENT

• burden on A to prove R has:

1. no real prospect of success in succeeding on / defending claim

   • realistic, NOT fanciful - better than merely arguable

   • libel claims - no reasonable jury could reach verdict contended for

   • defence with real prospect of success NO SJ where:

1. substantive defence e.g. volenti, frustration, illegality

2. point of law destroying the claimant’s cause of action

3. denial of facts supporting the claimant’s cause of action

4. further facts answering the claimant’s cause of action e.g. an exclusion clause

   • the cheque rule

     • if buyer pays for cheque, are 2 contracts:

1. initial contract - for goods / services

2. the cheque - buyer undertakes to pay sum stated on cheque

   • if cheque bounces OR is stopped seller can sue on:

1. initial contract - non-payment of contract for goods / services

   • buyer can use any defence SJ unlikely

----OR-----

2. the cheque - on the cheque itself

   • buyer can only use limited defences applying to cheque:

     • fraud, duress, illegality

     • no consideration

     • misrepresentation

   • SJ highly likely

   • applies to: cheques, direct debits, letters of credit, performance bonds

-----AND------

2. no other compelling reason for trial

   • compelling reason NO SJ where:

1. complex dispute of fact e.g. negligence claims - SJ is NOT a mini trial

2. deceitful, dishonest conduct by A

3. facts entirely within A's hands - unjust to enter SJ without letting R present claim without request for further info etc.

• can use procedure to dispose of weak claims, and to obtain summary determination of some issues

• can sometimes bring SJ and strike out in alternative

WHO CAN APPLY FOR SJ?

• the C - to attack weak defence / counterclaim, except in:

1. residential possession proceedings in protected tenancies / mortgages

2. admiralty claims in rem

• the D - to attack weak claim

• the court of own initiative - stop weak cases

WHEN TO APPLY FOR SJ?

• applications usually made before track allocation

  • apply between D's AoS and filing of DQ, or if not, as soon as becomes apparent it is desirable

  • court will not allocate track before hearing - usually deal with SJ and track allocation together

• the C - only after D files AoS / defence

  • except if C has NOT complied with pre-action protocol - after period for filing defence expires

  • if apply after AoS, no need to file defence before hearing

• the D - only after D themselves has filed AoS / defence

  • if D has applied for SJ against C, C CANNOT obtain default judgment against until SJ application disposed of

• specific performance claims - any time after service of claim form

PROCEDURE (amended version of general process for interim applications)

C or D applies

1. A must file AND serve within 14 clear days of hearing:

1. application notice

2. evidence in support - state belief there is no defence with reasonable prospect of success

3. draft order

2. R may file AND serve evidence in reply within 7 clear days of hearing

3. A may file AND serve further evidence within 3 clear days of hearing

Court fixes hearing of own initiative

1. court serves application notice

2. all parties must file AND serve evidence within 7 clear days of hearing

3. any party may file AND serve evidence in reply within 3 clear days of hearing

Specific performance claims

• A serves application notice + evidence + draft order 4 clear days before hearing

ORDERS THE COURT CAN MAKE ON SJ

1. giving judgment on claim - C applies for SJ and wins

   • may be subject to stay of execution - C wins but won't be paid till some other event e.g. trial of counterclaim

2. striking-out or dismissal of the claim - when D applies for SJ and wins

3. dismissal of the application - C OR D applies for SJ and loses claim continues (court may give case management directions and allocate track)

4. making a conditional order - claim may succeed continuation of claim conditional on party performing act e.g. pay money into court, take step in claim

   • if party does NOT take step - claim dismissed OR struck out

   • the more unlikely the claim / defence, the more onerous the step, taking into account party's finances

• N.B. court may order SJ on parts of claim AND dismiss application for remainder - narrow issues

Cross-claims and set offs

• when D's only answer to C's claim is a cross claim, can enter SJ in certain situations:

1. cross claim unconnected with claim - can enter SJ against D

2. counterclaims linked to the claim - enter SJ subject to a stay of execution pending trial of counterclaim

   • stay of execution more likely (i.e. normal SJ less likely) if:

1. strong counterclaim

2. close connection between claim and counterclaim

3. doubt on C's ability...