What Is Summary Judgment? CPR 24.3 Test Explained

Summary judgment is the civil courts’ mechanism for disposing of cases that do not need to be tried. It exists because a trial is an expensive way to establish something that is already clear, and because the overriding objective requires the court to allot no more of its resources to a case than the case warrants.

It is also the application most often made optimistically and refused. The threshold is deliberately high, and understanding why is more useful than knowing the words of the rule.

What is summary judgment?

Summary judgment is a judgment given without a trial, on the whole of a claim or on a particular issue within it. Either party may apply, and the court may also act on its own initiative.

A claimant uses it to obtain judgment where the defence is hopeless. A defendant uses it to dispose of a claim that cannot succeed. Either may use it to remove a discrete issue from a case that will otherwise proceed to trial, which is often the more realistic use.

The procedure is governed by Part 24 of the Civil Procedure Rules.

What is the test for summary judgment?

CPR 24.3 provides that the court may give summary judgment against a party on the whole of a claim or on an issue if it considers that the party has no real prospect of succeeding on the claim, defence or issue, and there is no other compelling reason why the case or issue should be disposed of at a trial.

The structure matters. These are two cumulative limbs, not alternatives. An applicant who establishes that the respondent’s case is hopeless may still fail if the court is persuaded there is some other compelling reason for a trial.

What does “no real prospect of success” mean?

In Swain v Hillman [2001] 1 All ER 91 Lord Woolf MR explained that the words direct the court to whether there is a realistic, as opposed to a fanciful, prospect of success. The respondent does not have to show that it will probably win. It has to show that its case is better than merely arguable in the sense of being fanciful.

That is a low bar for the respondent and a high one for the applicant, and it is where most applications fail. A defence that is weak, or that the judge suspects will not survive cross-examination, is not for that reason fanciful.

What is a “compelling reason” for a trial?

The second limb gives the court a residual discretion. A respondent who cannot show a real prospect of success may still resist summary judgment by showing that something about the case makes a trial appropriate.

Recognised examples include the need for disclosure or further investigation before the position can fairly be assessed, the existence of a witness whose evidence is not yet available, the case forming part of a larger dispute that is going to trial in any event, or circumstances in which the court considers the respondent should have the opportunity to have its position scrutinised in public.

The principle that decides most applications: no mini-trial

The single most important constraint is that the court must not conduct a mini-trial on the application. The principle comes from Swain v Hillman and is restated in the summary of principles in Easyair Ltd v Opal Telecom Ltd, which is the authority practitioners cite when setting out the approach.

The consequences follow from that. The court is not deciding which account it prefers. Where the evidence discloses a genuine conflict of fact that can only be resolved by hearing witnesses, summary judgment is not available, however unpromising one side’s version appears on paper. Equally, the court is not bound to accept assertions that are contradicted by the contemporaneous documents, and a bare denial unsupported by evidence will not create a real prospect of success.

The court is also entitled to consider the evidence that can reasonably be expected to be available at trial, not only what is before it on the application. A respondent who says that more will emerge must explain, with some substance, what it is and why it is likely to emerge.

Summary judgment or strike out?

The two are routinely applied for together and are frequently confused. They ask different questions.

Strike out under CPR 3.4(2) is directed at the statement of case. It asks whether the pleading discloses reasonable grounds for bringing or defending the claim, is an abuse of process, or breaches a rule or order. An application under CPR 3.4(2)(a) is not evidence-based: the court assumes the pleaded facts are true and asks whether they get the party anywhere.

Summary judgment under Part 24 is evidence-based. The court looks beyond the pleading to the material each side can muster and asks whether the case has a real prospect of success on that evidence.

The practical consequence is that a defectively pleaded but viable claim may survive summary judgment and face strike out, while a well-pleaded but evidentially hopeless claim may survive strike out and face summary judgment. Where both are arguable, applying in the alternative is orthodox.

When can an application be made?

A claimant cannot generally apply for summary judgment until the defendant has filed an acknowledgment of service or a defence, unless the court gives permission. The purpose is to ensure the defendant has had the opportunity to state its position before the claim is determined against it.

Part 24 also excludes certain categories, including proceedings for possession of residential premises brought against a mortgagor or a tenant.

Timing is a tactical question as well as a procedural one. Apply too early and the respondent argues that disclosure is needed before its position can fairly be judged, which feeds directly into the compelling reason limb. Apply too late and the costs the application was meant to save have already been incurred.

How is the application made?

The application is made on notice, supported by evidence. The applicant must state that the application is for summary judgment, identify the points of law or documents relied on, state the applicant’s belief that the respondent has no real prospect of succeeding and that there is no other compelling reason for a trial, and attach a draft of the order sought.

The respondent must have at least 14 days’ notice of the hearing and of the issues the court is to decide, and evidence in response is normally filed seven days before the hearing, with any evidence in reply three days before.

These requirements are not formalities. Applications have failed because the notice did not draw the respondent’s attention to the evidence deadline, or because the application did not state the required belief.

What orders can the court make?

The court is not confined to granting or refusing the application. It may give judgment on the claim, strike out or dismiss the claim, dismiss the application, or make a conditional order.

The conditional order is the one practitioners underuse. Where a case is improbable but not fanciful, the court may allow it to continue on condition that the party pays a sum into court or takes some specified step. It is the middle course between a case that should be stopped and one that should proceed unencumbered.

Costs usually follow the event on the application itself, and a failed application is an expensive way to signal confidence.

How to approach it as an advocate

Three things distinguish applications that succeed.

Choose the target. Applications aimed at the whole claim fail more often than applications aimed at a single issue. Removing a discrete legal point, or a head of loss that cannot be established, narrows the trial and is far more likely to be granted.

Engage the second limb. Applicants concentrate on showing the case is hopeless and treat the compelling reason limb as a formality. Respondents rarely do. Address directly why no further investigation, disclosure or evidence could change the position.

Do not invite a mini-trial. An application built on competing witness accounts asks the court to do the one thing it has been told not to do. If the argument requires the judge to prefer one version of events, the application is the wrong tool.

The written advocacy carries most of the weight on these applications, and the discipline is the one a skeleton argument demands: identify the issue, state the proposition each authority establishes, and confine the argument to what is genuinely in dispute.

Does summary judgment exist outside the civil courts?

Not in the same form. There is no equivalent of Part 24 in criminal proceedings.

In the Employment Tribunal, the comparable powers are strike out and the deposit order, exercised under the tribunal’s own rules and typically at a preliminary hearing. The underlying idea is similar, in that a claim or response with no reasonable prospect of success can be stopped or made conditional, but the tests and the procedure are not the same and the civil authorities do not transfer directly.

This article is information and analysis, not legal advice. Whether summary judgment is available in a particular case depends on the evidence, the issues and the rules in force at the time. Confirm the current rules before acting.