Summary judgment

A way of ending a claim, a defence, or part of either, before trial — used when the court can see that one side has no real chance of winning, so there is nothing left worth a full hearing.

Can the court give summary judgment without a hearing?

No. Even where the outcome looks clear on paper, the party facing the application is entitled to a hearing to put their case before the court decides. The hearing is usually short, dealing with the written evidence already filed rather than live witness testimony.

What happens if I lose a summary judgment application made against me?

If the court finds you have no real prospect of successfully defending the claim (or part of it), and no other compelling reason for a trial, it can enter judgment against you there and then, without a full trial. You may also be ordered to pay the costs of the application, though cost rules differ on the small claims track.

Is summary judgment the same as a default judgment?

No. A default judgment is entered automatically because a defendant simply failed to respond in time — the merits are never examined. Summary judgment is a considered decision on the merits: the court actually looks at the evidence and legal arguments and concludes that one side cannot realistically win.

Can I apply for summary judgment on a small claims track case?

Yes. CPR Part 24 is not disapplied on the small claims track, so the power exists in principle. In practice it is used less often there than on the fast or multi-track, because small claims track cases are usually dealt with quickly at a final hearing anyway, and the fixed-costs regime makes a separate interim application less attractive.

What evidence do I need to apply for summary judgment?

Written evidence — usually a witness statement with supporting documents — showing why the other side's case or defence has no real prospect of success. You cannot simply assert that the other party is wrong; you need to show the court why no judge, weighing the evidence as it stands, could reasonably find in their favour at trial.

Can summary judgment be granted on only part of a claim?

Yes. The court can give summary judgment on the whole claim, on a specific issue within it, or on a defence (or part of one). This is useful where some elements of a dispute are genuinely arguable but others plainly are not.

The two-part test the court applies

Under CPR rule 24.3, the court may give summary judgment against a claimant or a defendant if two things are both true: the party has no real prospect of succeeding on the claim, the defence, or the particular issue, and there is no other compelling reason why the case should still go to trial.

“No real prospect” does not mean the case has to be hopeless in an obvious, glaring sense. The test asks whether the party has a realistic — as opposed to a merely fanciful or arguable — chance of success. A case that is simply weak is not necessarily one with no real prospect at all; the court is looking for cases where, on the evidence filed, no reasonable judge could find in that party's favour at trial.

The second limb matters in practice: even where a case looks weak, the court can still refuse summary judgment if there is some other good reason for a full trial — for example, where the full facts can only emerge properly through disclosure of documents or cross-examination of witnesses, rather than on the papers available at the summary judgment stage.

Who can apply, and when

Either side can apply for summary judgment — a claimant can use it to try to dispose quickly of a defence that has no real substance, and a defendant can use it to try to dispose of a claim that should never have been brought. The court can also raise the possibility on its own initiative, for example at a case management hearing, even if neither party has formally applied.

An application is usually made after the defendant has filed an acknowledgment of service or a defence, since the court needs to see both sides' positions before it can sensibly decide there is no real prospect either way. It must also be made before directions are given for trial, in most cases, though the court retains some flexibility.

Why it is used less often on the small claims track

Summary judgment exists on every civil track, including the small claims track, but it is applied for far less frequently there. Small claims cases are, by design, dealt with quickly and relatively informally at a single final hearing, often only a few months after the claim is issued. Making a separate interim application for summary judgment adds a further hearing and further costs to a process that is supposed to stay simple and proportionate for claims generally worth no more than £10,000.

Cost rules reinforce this. On the small claims track, the usual rule is that each side pays its own costs regardless of who wins, subject to a short list of exceptions (see the fixed costs rules under CPR Part 45). That removes much of the incentive a party might otherwise have on a higher-value claim to spend money forcing an early summary decision, because winning a summary judgment application will not usually mean recovering the legal costs of bringing it.

A claimant sues a trader for £1,800, saying goods paid for were never delivered. The trader's defence says only that the claimant “is mistaken”, with no account of what was supposedly delivered, no delivery note, and no explanation of what happened to the payment. The claimant applies for summary judgment, relying on a witness statement, bank statement showing the payment, and the absence of any substantive answer in the defence.

Bare denial, no evidence

Real prospect of defending?

Summary judgment granted

Because the defence offers no evidence capable of being tested at trial — just an unsupported denial — the court can conclude there is no real prospect of a successful defence and no other reason for a trial, and enter judgment for the claimant without a further hearing on the merits.

Civil Procedure Rules, Part 24

Civil Procedure Rules, Part 27 (small claims track)

Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch)

Summary Judgment — Small Claims Glossary

What summary judgment is, the no-real-prospect test the court applies under CPR Part 24, and why it is used less often on the small claims track.