#16083 - Summary Judgment - BPC Civil Litigation

SUMMARY JUDGMENT (Part 24)

(nB: this is a type of interim application, with particular rules)

24.1, Scope of this part (re summary judgment)

• This Part sets out a procedure by which court may decide a claim, OR a particular issue, without a trial.

PD 24, Para 1, Applications for part 24 summary judgment

• Attention is drawn to Part 24 itself and: Part 3 rules 3.2(3) and (5)); Part 22; Part 23 (23.6); Part 32 (32.6).

• In this PD, the word “claim” includes:

  • (1) Part of a claim;

  • and (2) an issue on which the claim (in whole or part) depends.

24.2, Grounds for summary judgment

• Court may give summary judgment, against a C or D, on the whole of a claim OR on a particular issue, IF (1) no real prospect & (2) no other compelling reason:

  • (1) ‘no real prospect of succeeding/successfully defending’:

    • (i) that C has no real prospect of succeeding on the claim or issue; OR

    • (ii) that D has no real prospect of successfully defending the claim/issue;

  • AND

  • (2) there is no other compelling reason why the case/issue should be disposed of at a trial.

• [NB, r3.4: court can strike out a SoC (or part of it) if it appears that it discloses no reasonable grounds for bringing or defending a claim.]]

• (PD24, 1(3)): An application for summary judgment under r24.2, may be based on:

  • (a) a point of law (including a question of construction of a document)

  • (b) the evidence, or lack of it, which can reasonably be expected to be available at trial; OR

  • (c) a combination of these.

Commentary, 24.2.3, re condition (1): ‘no real prospect of succeeding/successfully defending’f

• So it will defeat the application for summary judgment if the respondent shows some ‘prospect’, i.e. some chance of success

• that prospect must be ‘real’ (i.e. not false/fanciful/imaginary).

  • ‘real’ means respondent must have a case which is better than merely arguable.

  • Lower test than balance of probs But respondent is not required to show their case will ‘probably’ succeed at trial

  • A case may have a ‘real prospect’ of success, even if it is improbable (in such a case, court is likely to make a ‘conditional’ order, see below).

• The hearing of an application for summary judgment is not a summary trial

  • the court will consider the merits of the respondent’s case only to the extent necessary to determine whether it has sufficient merit to proceed to trial.

  • the court should not conduct a mini-trial.

  • At trial, the criterion to be applied by the court is ‘probability’ (victory goes to the party whose case is more probable, taking into account the burden of proof);

    • This is NOT true of a summary judgment application, where the criteria is ‘absence of reality’ (i.e. no ‘real’ prospect), NOT ‘probability (as for a trial)

• Where a summary judgment application gives rise to a short point of law or construction the court should decide that point IF (1) it has before it all the evidence necessary AND (2) if satisfied that the parties have had an adequate opportunity to address the point in argument.

• The court should not allow a case to go forward to trial simply because there is a possibility of some further evidence arising (ICI Chemicals v TTE Training).

• BUT, an application for summary judgment is NOT appropriate to resolve a complex question of law and fact, the determination of which necessitates a trial, having regard to all of the evidence.

• An additional problem arises when a point of law is taken on an appeal against an award of summary judgment which was not argued in the lower court: a determination of that point by the appeal court would deprive the losing party of an opportunity to bring a first appeal on that point.

  • In a suitable case this problem might be solved by the appeal court allowing the appeal against the award of summary judgment and then immediately rehearing the summary judgment application again, thereby making a first instance decision on the matter.

• In practice, it is often more difficult to apply the ‘no real prospect of success’ test on an application for summary judgment, than it is to try the case in its entirety:

  • The decision-maker at trial will usually have the advantages of: a better grasp of the case of the whole; hearing the evidence tested; receiving more developed submissions; and of having more time to digest and reflect on the materials.

• EG, Beiersdorf v Ramlort, summary judgment refused: the question whether alleged letters of consent (re alleged trademark infringements) were genuine should be determined at trial, after disclosure and cross-examination in the usual way.

• Disposal of a claim (or part) by summary judgment may raise issues re Art 6 ECHR right of access to a court [[similar to those issues re power of court to strike out under r3.4(2), see commentary at 3.4.1 below]].

Commentary, 24.2.4, re condition (2): ‘no other compelling reason for a trial’

• Egs of ‘compelling reasons’ for refusing summary judgment:

  • The fact that the claimant company was in liquidation, where there were latent claims and cross-claims between the parties (Bouygues).

  • Summary judgment for the C against the first D, was held to be inappropriate where similar issues remains remained to be determined at a trial as between the first D and other parties (Iliffe v Feltham Construction)

  • Refusal to rule upon a short point of construction of the terms of an insurance contract, where those terms were said to be standard terms widely used in the insurance market (A C Ward v Catlin).

• Where the claim on which summary judgment is sought involves serious allegations of bad faith against a party is not by itself a compelling reason for trial: findings of bad faith can be reached in a summary judgment application IF such issues can be determined without a trial in all the circumstances.

• Pre-CPR, the following circumstances were held to afford ‘some other reason for trial’:

  • [[NB: in July 2000, the word ‘compelling’ was added. This does not appear to alter the substance of ambit of summary judgment]]

  • Where C’s case appears to be ‘devious and crafty’ and not ‘plain and straightforward’.

  • Where D is an executor or administrator who can raise facts by reference to the existence or absence of letters, accounts or such like of the deceased which make it reasonable to require full investigation;

  • Where C’s case tended to show he had acted harshly and unconscionably and it is thought desirable that if he were to get judgment at all it should be in the full light of publicity;

• But different view, CA 2015: Bernsten v Tait: C had no real prospects of success; thus there was no point in letting this case proceed to trial, even though the underlying facts raised matters of considerable concern as to the lending practice of banks.

• Re cases including a claim for libel/slander/malicious prosecution/false imprisonment:

  • Such cases are not expressly excluded from the current rule (they were excluded under the previous rule).

  • However, in such cases the respondent may have a right to trial by jury (SCA 1981 s69; CCA 1984 s66

    • This right is not a matter of mere procedure, and thus the CPR cannot and does not override it.

  • Although summary judgment may be appropriate on issues of law, these statutory provisions entitle a respondent to have material issues of fact decided by a jury

  • Safeway: the claim never reached trial by jury; CA declined to anticipate the possibility that the verdict of a jury might be perverse and such that it could be reversed appeal.

  • CF: Alexander v Arts Council, CA: a libel claim did proceed to trial by jury; the grant of summary judgment made by trial judge in favour of D was upheld by CA; C’s case depended on a finding that publications had been made maliciously and the evidence in support of the claim, taken at its highest, was such that a jury properly directed could not properly finding in favour of the C. Summary judgment in such circumstances was not speculating that the jury might reach a perverse decision; rather than the only jury decision capable of supporting the case in question would be bound to be set aside on appeal.

  • Important distinction in defamation cases between the function of the judge and that of the jury

Commentary, 24.2.5, Burdens of proof

• Under r24.2, the overall burden of proof rests on the applicant to establish there are grounds: to believe the respondent has ‘no real prospect’ of success AND there is no other compelling reason for a trial.

  • This burden is indicated by para 2(3) PD24 (see below, re application notice) re applicant must: (a) identify concisely any point of law or provision on which they rely, and/or (b) state the application is made because applicant believes respondent has no real prospect of succeeding on/successfully defending the claim/issue; AND, in either case, state that the applicant knows of no other reason why disposal of the claim or issue should await trial.

  • I.e. the essential ingredient – the applicant’s belief that respondent has no real prospect of success & there is no other reason for a trial.

• If the applicant for summary judgment adduces credible evidence in support of their application the respondent becomes subject to an evidential burden of proving some ‘real prospect’ of success OR some other reason for trial

  • Standard of proof required of respondent is not high: it is sufficient merely to rebut the applicant’s statement of belief.

• The court must apply a negative test as indicated by the language of r24.2 (‘no real prospect...no other reason’).

• The respondent’s case must carry some degree of conviction: the court is not required to accept without analysis...