SUMMARY JUDGMENT (Part 24) CPR.24.2(a)(i) and (ii)

Summary Judgment is the rule by which the court “weeds out” cases that should not go to trial, either because the claim has no “real prospect” of succeeding, or because a defence has no “real prospect” of success.

The word “real” within the phrase “real prospect” is the key word. It directs the court to the need to see whether, on the evidence, there was a realistic, as opposed to a “fanciful”, prospect of success (Swain v Hillman (2001) 1 All ER 91). The phrase does not mean “real and substantial prospect of success”. Nor does it mean that summary judgment will only be granted if the claim or defence is “bound to be dismissed at trial”. Nor does it require compelling evidence, but simply enough evidence to raise a real prospect of a contrary case (Korea National Insurance v Allianz Global Corporate (2007) EWCA Civ 1066).

In the High Court, summary judgment applications are held by High Court “Masters” in the Chancery, Queens Bench and Commercial divisions. In the County Court, summary judgment applications are heard by District Judges. They are determined on the written evidence, submitted by the parties in statements of case. There is no oral evidence given at such hearings. Occasionally, a judge, on a summary judgment application, will find that a case is “hopeless” or the evidence “fanciful”. Some Masters deplore the use of any language other than that there is no “real” prospect of success). Potter LJ in Downtex v Flatley [2003] EWCA Civ 1282 said this about summary judgment:

“Summary procedure should not involve the conduct of a mini-trial in a case where the defence advanced is ‘fact sensitive’ and there is reason to think that further facts may emerge or require investigation at trial before a fair and/or final conclusion can be reached. However, where there is sufficient material before the court on the pleadings or in evidence to allow the court to form a confident view upon the prospects of success for the defence advanced and the case is not fact sensitive in the sense that the essentials have all been deployed and there is no reason to think that the defendant will be in a position to advance his case to any significant extent at trial, then the court should not shy away from careful consideration and analysis of the facts relied on in order to decide whether the line of defence advanced is indeed no more than fanciful.”

Thus, “real” or “realistic” is to be contrasted with “fanciful”. For completeness, Potter LJ in Eadie and F Mann v Patel [2003] EWCA 472 underlined that “realistic” means “better than merely arguable”. The defence, or claim, which is being challenged must “carry some degree of conviction” (Eadie and F Mann v Patel [2003] EWCA 472).

It should be noted that the court does not have to “blindly” accept every statement made by a party in their statement of case. It has always been the practice on a summary judgment application that court can disregard any evidence which is “fanciful, inherently inconsistent, incredible, or obviously wrong”. Some statements can be demonstrated to be false by reference to the available documentation. Some statements are so obviously implausible that they can be disregarded. However, a genuine contest of oral testimony, on credible evidence, is an issue that will be unsuitable for summary judgment.

In practice, an applicant on a summary judgment application needs to be able to contend that the claim, or defence, is so replete with inconsistencies that “whichever way you point the claim (or defence) it is bound to fail”; eg even if every factual allegation is assumed in favour of the Claimant then the claim (or defence) still fails; and that the court should “put the litigation to bed” and “save the parties the cost of a trial”. There is also an imperative in “not taking up the courts finite resources with fanciful or hopeless litigation”.

Where the case is “fact sensitive” (and the determination of those facts are determinative, eg an oral discussion alleged to constitute an agreement) then it is unlikely that the court will grant summary judgment as it cannot discount the possibility that a person’s word may be accepted at trial. A judge in this instance will often say to an advocate asking for judgment:

“you may be right Mr Snooks, but is this so clear that it is suitable for a summary procedure”?

If defending a summary judgment application, the advocate will often submit that “the evidence is fact sensitive” and that court should not “conduct a mini-trial”. If the evidence is not inherently inconsistent or implausible, then a party opposing a summary judgment application is usually entitled to the benefit of the doubt.

It has not been unknown for summary judgment to be used as a tactical device to draw out the evidence of the other party, under a statement of truth, before trial.