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When to seek summary judgment

It will be possible, in certain circumstances, to deal with cases without the need for parties to incur the time, cost and potential publicity involved in full-blown litigation. Where a case is suitable for disposal by summary judgment, a judicial decision to finally resolve the case is made early and in a simple hearing, as opposed to in a trial involving detailed disclosure and adversarial examination of evidence.

Civil Procedure Rule (CPR) 24.2 states that summary judgment may be awarded against a claimant or defendant on the whole of a claim or on a particular issue if the court considers that the party has no real prospect of success and there is no other compelling reason why the matter should be dealt with at trial. Two recent cases, Optaglio v Tethal and Royal Mail v Maples Teesdale [1] together provide a helpful reminder of the circumstances in which summary judgment can be obtained.

When considering whether to seek summary judgment, the following principles apply.

  • A summary judgment hearing is not the appropriate forum to resolve complex disputes of law or fact – it is only suitable for clear and obvious cases.
  • In applying the CPR 24.2 test, the court must consider whether the claimant or defendant has a realistic (as opposed to a fanciful) prospect of success. In this context, ‘realistic’ means ‘with some degree of conviction’ or ‘more than merely arguable’.
  • On a summary judgment application the court must not conduct a ‘mini-trial’ without the benefit of disclosure and cross-examination of evidence, but it must undertake some investigation and analysis of the law and evidence before it, to reach a proper conclusion.
  • Where the court is satisfied that it has the necessary law and evidence to reach a conclusion – including deciding short points of law or construction – it should do so. Where a party’s case is wrong in law, the sooner it is stopped, the better.
  • Where there is credible contemporaneous material which contradicts a party’s evidence or assertion, a judge may give summary judgment on the basis that the evidence or assertion is not to be believed. However it is incumbent on the judge to explain and justify, with reasonable particularity and reference to the contemporaneous material, that decision.
  • The need for further investigation to be carried out can constitute a ‘compelling’ reason for the matter to be heard at trial. Another ‘compelling reason’ might be where legal authority relied upon in a summary judgment hearing is actually the subject of an appeal. Where there are serious allegations, such as to fraud, dishonesty or bad faith, that of itself is not necessarily a ‘compelling’ reason to hold a full trial, but it might be depending on the facts of the particular case.
  • CPR Practice Direction 24 clarifies that, on any summary judgment application, the court may give judgment on the claim for either party; it may strike out or dismiss the claim; it may dismiss the summary judgment application itself; or it may make a conditional order. A conditional order can involve either party making a payment into court or giving security for costs, or it can require a party to take a specific step, failing which that party’s case will be dismissed or struck out. Conditional orders may be made where it is possible but unlikely that a case will succeed and so the CPR 24.2 test is met, but only just.

WM Comment

Parties with a particularly strong legal or evidential case, or those facing a spurious or misconceived claim, should seek early advice as to whether summary judgment would be available to quickly and cost-effectively dispose of the dispute. In Optaglio the Court of Appeal reiterated that the summary judgment test is a high threshold, but the possibility it affords for early and private determination of a dispute means that it can also be a highly valuable tool that bears careful consideration in many cases.

For further information and advice, please contact any member of Walker Morris’ Commercial Dispute Resolution team.


[1] Optaglio Limited v Tethal & Anor [2015] EWCA Civ 1002; Royal Mail Estates Limited v Maples Teesdale & Anor Ch D 14/10/2015