Summary Judgment explained
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21 April 2011
When the defendant has failed to acknowledge the claim or defend it is
usually possible to enter a default judgment. However, where there is
no real defence, a defendant's often go through the motions of
defending just to delay the time when judgment may be entered by the
Claimant. It is also possible for defendants to put up the pretence of
having a real defence to such an extent that some cases run all the way
through to trial before judgment can be entered.
The CPR provides several ways of avoiding
this from happening. The court can use its power to strike out the
defence especially when the defence is hopeless. The Claimant can also
enter summary judgment which is a related procedure, and is used where
a defence can be shown to have no real prospect of success and there is
no other compelling reason why the case should be disposed of at trial.
The procedure for entering summary
judgment is not limited to use by Claimants against Defendants.
Defendants may apply for summary judgment to attack weak claims brought
by Claimants. Further, summary judgment can be used by the court of its
own initiative to perform the important function of stopping weak cases
from proceeding. The procedure can also be used for the purpose of
obtaining a summary determination of some of the issues in a case,
thereby reducing the complexity of the trial.
Paragraph 5.1 of PD 24 provides a range of
orders available on a summary judgment application including:
(a) giving judgment on the claim;
(b) striking out or dismissal of the claim;
(c) dismissal of the application; and
(d) making a conditional order.
Where the defendant has a defence to only
part of the claim the most natural order would be to grant judgment for
the part of the claim against which there is no defence, and to dismiss
the application as to the balance. Although CPR, r 24.2, expressly says
that the court can give summary judgment on particular issues, this is
most appropriate where resolving the issue or issues will resolve or
help to resolve the litigation.
Riyaz Jariwalla is a
solicitor who specialises in intellectual property law and commercial
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Article Published/Sorted/Amended on Scopulus 2011-04-29 21:45:20 in Legal Articles