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Summary Judgment in a Small Claims Case

By: Louise Smith, barrister - Updated: 15 Sep 2016 | comments*Discuss
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The Law on Summary Judgment

The law governing civil court proceedings allows a party to apply for summary judgment in a claim if the other party has no real prospect of success at trial. The law on applications for summary judgment is contained in Part 24 of the Civil Procedure Rules (CPR).

When to Apply For Summary Judgment

An application for summary judgment should be made before a case has been allocated to the small claims court. Ideally the application should have been made by the time the applicant returns their allocation questionnaire to the court.

A claimant may not make an application for summary judgment, without permission, until the defendant has returned their acknowledgement of service or defence.

A defendant may make an application for summary judgment at any time after proceedings have been issued against them.

The Format of Applications for Summary Judgment

An application for summary judgment must be supported by written evidence, which may include a witness statement and copies of any documents which support the application. The written evidence must set out in full the basis of the application.

To comply with the rules, the application must say that:

  • It is an application for summary judgment pursuant to Part 24 of the CPR;
  • The other party has no real prospect of success;
  • There is no other reason why disposal of the claim should await trial; and,
  • The respondent’s attention is drawn to rule 24.5(1) which states that if he wishes to rely on any written evidence at the hearing of the application he must send copies of it to the court and the applicant at least 7 days before the hearing.
The court will list a hearing at least 14 days after the application is made. The court will not allocate the claim until after the application has been heard. Therefore, as a matter of law, the case will not yet be a small claim.

A fee is payable to issue an application for summary judgment.

The Hearing of an Application for Summary Judgment

An applicant for summary judgment will have to convince the judge that the other party would have no real prospect of success if there was a trial and that there is no other good reason why the case should go to trial.

It will be a matter for each judge, based on the evidence, whether he thinks the party has a real prospect of success. In deciding an application for summary judgment, the judge will bear in mind his duty to ensure that justice is carried out efficiently and in a cost-effective way.

A judge may allow an application for summary judgment if he concludes that the defendant’s documents reveal no defence known in law - as there would be no benefit in allowing the case to proceed any further. However, if the judge thinks that the defendant has some chance of success he may conclude that justice demands that the defendant be given a chance to defend the case.

The judge may decide that summary judgment should be given for part of the claim but that the rest must be decided at trial.

Costs of Summary Judgment Applications

Part 45 of the CPR sets out the “fixed costs” that a judge may allow after an application for summary judgment. If the applicant is successful they can recover all court fees and costs already incurred. The applicant is also entitled to a specific cost award when judgment is granted – currently this is £175 for judgments not exceeding £5000.

Some judges will “summarily assess” costs after a successful application for summary judgment. This means that they will take into account all of the costs incurred by the applicant, including the costs of any legal advice or representation. The party who loses the application may be ordered to pay all or some of these costs.

Related Provisions in Small Claims Cases

Under Part 27 of the CPR the court has a specific power to list a preliminary hearing of a small claims case in circumstances where it thinks that:
  • either party has no real prospect of success; or,
  • either party has no basis in law for continuing with the case.
Such hearings are relatively rare. If a court does list a hearing in these circumstances it will apply similar criteria as it would to an application for summary judgment.

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so if the claimant refusesto produce evidence in a credit card debt that i have lodged a defence against, would that justify a summary judgement? They have produced two default notices but nothing as to how the debt was comprised or a signed credit agreement. thanks.
mattwine - 15-Sep-16 @ 11:29 AM
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