Summary Judgment: Civil/Commercial Litigation, Civil Procedure
An application for Summary Judgment can be made at any time once Proceedings have been issued either in the County Courts, or the High Court, but it is a risky application and it is highly advisable to obtain good advice from specialist solicitors. Never underestimate the tactical significance of losing an application such as this, since the defendant will feel emboldened if you do not succeed and the court may well make a costs order against you.
Since the Civil Procedure Rules 1998, the rules have been synchronised and the procedure is the same in both arenas.
It can be made by either a Defendant or a Claimant. It is sensible however to wait until you have seen a Defence, rather than to anticipate what might be said.
In the case of a Claimant, he/she has to show that the Defendant has no realistic prospect of successfully defending the Claim.
In the case of a Defendant, he/she has to show that the Claimant has no realistic prospect of successfully bringing a claim.
In both cases, the applications should be supported by relevant evidence.
The application is made on Form N244. The points you wish to make as to why the other side is likely not to be successful in bringing or defending a claim, should be succinct. The application should be accompanied by a Witness Statement signed with a Statement of Truth. Alternatively, you can state your reasons on the N244 Form itself, and if you need further space, you can use Form N244A which are forms accessible through the internet.
You need to state the amount of time necessary for the Court to consider the application. Usually, the Parties should ask for a hearing, rather than a hearing by telephone, or for the application to be considered on paper.
In the County Court, such an application will usually be heard by a District Judge. In the High Court, such an application is usually heard by a Master of the Supreme Court.
Make sure you give a realistic time for your application to be heard. However, if you overstate your time estimate, the Court may well list the matter based on the time you consider, but the longer the hearing time required, the longer your case may take to be heard. Usually, time estimates listed as short, will be given priority by the Courts. If however, you try and ‘play’ the system, and seek a time estimate shorter than required, and then appear at Court with an application and evidence to be considered which is going to take longer than the 5 or 10 minutes estimated, all that is likely to happen is that the Judge will adjourn the matter to a more realistic time, so all you will do is to have wasted your time, your opponent’s time, and the Court’s time.
My advice is to seek independent legal advice from good solicitors before considering making such an application.
David J Rosen
Solicitor-Advocate Higher Courts (All Proceedings)
The writer is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons. The writer is also a member of the London Solicitors’ Litigation Association, and an associate visiting Professor of Law at Brunel University.
