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Home | News & events | Legal updates | Summary judgment as tool to control litigation costs
Summary judgment as tool to control litigation costs
12 February 2010
Summary judgment is a procedure in which a party to an action (or the court, of its own accord), can apply for an early determination of all or part of a claim without the need for a full trial.
There is still a court hearing, but it is greatly simplified. For example, there is no expert evidence or cross examination of witnesses.
The summary judgment procedure can only be used in certain claims, in which it can be argued that:
- a claim or defence has no real prospect of succeeding at trial, on either the entire case or a particular issue
- there is no other compelling reason why the case or issue should proceed to trial
A 'real prospect of success' means there is more than just an arguable case: it must actually have a reasonable chance of winning. However, even if the application is not successful, in some circumstances it may still offer a tactical advantage, because in preparing for the application, the responding party will be forced to set out its position and evidence earlier than usual.
The procedure
An application for summary judgment is usually only made once the defence or acknowledgement of service has been filed.
Summary judgment applications are suitable in cases where the party making the application considers that the case is a clear cut matter of fact or law, in which oral evidence is not required. It is also used when the applicant considers that the other party has insufficient evidence to prove its case. There are considerable potential savings in terms of time and costs.
An application notice must be completed, then filed and served along with the supporting evidence - usually a witness statement together with copies of any supporting documents. The supporting evidence will set out the reasons why the applicant considers summary judgment to be appropriate.
The respondent also has an opportunity to rely on written evidence, which must be served in good time for the hearing.
At the hearing, the applicant (or usually their solicitor or counsel) will set out the reasons why they consider summary judgment is appropriate. The respondent then has a chance to advance counter-arguments.
Although the burden of proof is on the party making the application, the responding party will usually be required to make points in his favour in order to demonstrate to the judge that his case has sufficient potential to succeed. The judge will usually make an order there and then, including an order for legal costs.
The court will not grant summary judgment when it is satisfied that there is some other reason - besides the merits of the case - for the matter proceeding to trial; for example, the respondent needs time to investigate the claim and has not yet had chance to do so.
What the court may order
There is a wide range of possible orders open to the judge on these applications, including:
- if the court finds wholly in favour of the applicant then the applicant will be awarded judgment and the case will be disposed of that way (subject to any appeal)
- the court may make a conditional order that the respondent must take a particular step (for example to pay some money into court) in the action
- summary judgment can also be granted in relation to a part of a claim or a particular issue only. If this happens, that aspect of the claim is resolved and the remainder of the claim proceeds to trial in the usual way
- if the application is unsuccessful, it will be dismissed and it is likely that the applicant will be ordered to pay costs to the respondent as well as bearing its own costs. These costs can be significant
Each case will be judged on its merits in terms of the costs order made, and the court has the power to make further directions about the future management of the case at these hearings.
What does this mean?
- summary judgment is a useful tool to obtain determination of suitable claims at an early stage, and make potentially large savings in costs and time
- however, it is only suitable for clear-cut cases which have arisen out of a straightforward point of law and/or fact and where no oral evidence is required
What should you do?
- consider whether your claim is one which may be suitable for dealing with by way of an application for summary judgment. If your case is complicated and/or will require oral evidence then it is not likely to be suitable; however, if it is fairly straightforward and can be dealt with by examination of documents alone, then it is more likely to be able to be dealt with by way of summary judgment
- consider the risk that a judge may not award summary judgment in your favour: you may consider that your opponent has an unwinnable case, but the judge, as an objective person, may see things differently! If you do not win, then you will be likely to have to pay your opponent's costs associated with the application, as well as your own
- seek early advice on the merits of your case as a whole and the likelihood of success at trial and/or its suitability to be addressed by way of summary judgment application
© Shoosmiths. This page is for general information: it is not legal advice. Please read our full terms and conditions for details of the disclaimers and exclusions which apply.
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Kate Smith
Solicitor
T: 03700 86 8418
I: +44 (0)1908 48 8418
E: kate.smith@shoosmiths.co.uk