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Home // My opponent has no case: Can we avoid a Trial?

The UK’s legal system is adversarial in nature. When a case goes the whole way and ends up in trial, the two sides effectively ‘fight it out’ in front of a judge. This contrasts with many other countries, including some of the civil law jurisdictions within the EU. In an adversarial system the threat of risky and expensive court proceedings hangs over the parties and will often influence the way they approach litigation from the outset.

In our experience it’s not uncommon for a company or individual to issue proceedings as a negotiating tactic. At its heart if the claim is frivolous – it has no merit. But the prospect of having to engage in any kind of formal legal case is sometimes enough to pressurise the other side into some kind of compromise. The thinking is that the very possibility of court action will force a party to agree to a settlement to avoid litigation entirely. In response to this kind of behaviour our legal system has developed procedures that enable a judge to end what is a spurious or ill-conceived case swiftly – before it goes to trial. The procedures are

  • Default judgment
  • Strike-Out
  • Summary judgment

Here we’ll look in more detail at when a party might apply for a summary judgment.

What is a Summary judgement?

Under the Civil Procedure Rules (CPR) a court can order summary judgment against either side in proceedings if it considers that both:

  • The party has no real prospect of successfully bringing/defending the claim or issue; and
  • There is no other compelling reason why the case or issue should be disposed of at a trial.

If the application for summary judgment is successful, then there is no need for further proceedings or trial. Sometimes an application for summary judgment will only succeed in relation to part of a claim. If that’s the case, then that part if the case need not be examined at trial although the proceedings as a whole can continue.

How easy is it to get Summary Judgement?

The summary judgment procedure under the CPR is a powerful tool for anyone who feels they are being compelled to engage in a dispute that has no underlying merit. But it’s a draconian remedy and one that the courts won’t award without good reason.

A party that faces an application to effectively throw out their case by way of summary judgment only needs to illustrate to the court that it has a real prospect of success at trial. The case that lawyers take guidance from on what ‘real prospect of success’ means in this context is Swain v Hillman (2001). There the court indicated that

The word “real” distinguishes fanciful prospects of success. The court needs to see whether there is a “realistic” as opposed to a “fanciful” prospect of success.

In practice this means that to be able to resist a summary judgment application there must be a case that is stronger than just being arguable. There’s no need to demonstrate that the case will ultimately succeed. Remember during a summary judgment hearing there is no room for examining issues of fact. The appropriate place to do this is at trial.

You can read about a case where Nath Solicitors successfully obtained summary judgment on behalf of a client here.

It’s also worth mentioning that at Nath Solicitors we often use arbitration as opposed to litigation to help our clients resolve cases. Although arbitration is a less adversarial system in general many of the institutions that run arbitrations have procedures like early determination that are like summary judgment. These procedures can enable a party to have the arbitration dismissed before a full hearing.

Contact our Litigation Lawyers

For advice on summary judgment applications and other aspects of litigation and dispute resolution please contact Shubha Nath at Nath Solicitors on 44 (0) 203 983 8278 or complete our online contact form.


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