A Step-by-Step Guide to Summary Judgment

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1. Summary judgment under CPR Part 24 can provide a powerful tool for both Claimants and Defendants to litigation. It allows for swift determination of a claim without the time and costs associated with awaiting determination at a trial. Even where the summary judgment does not dispose with the entirety of the claim, summary determination of an issue, or issues, can have important tactical implications. For example:
   1. The issues to be determined at a trial are narrowed, which may well significantly reduce the costs of the proceedings; 
   2. A successful application for summary judgment on some of the issues is likely to be accompanied by a costs order. This could place pressure on the other party and could be utilised as part of settlement discussions; and 
   3. The evidence filed and the other side’s position in response to the application, provides early insight into that parties’ approach to the litigation. 
2. This article provides a step-by-step guide of the key provisions relating to summary judgment applications.  

(1) When is Summary Judgment Available?

3. Summary judgment is widely available and an application can be made in most proceedings. This includes in Part 8 proceedings, albeit Part 8 proceedings are designed, in and of themselves, to be simple and expeditious. Therefore, the utility of summary judgment in Part 8 proceedings may be more limited. 
4. The only circumstances in which summary judgment is not available is by a Claimant against a Defendant in some possession claims relating to residential properties. Specifically, such claims against a mortgagor, tenant or contract-holder, or a former tenant or former contract-holder holding over with protected occupancy (CPR 24.2(b)). 

(2) The Timing of the Application 

5. In relation to the timing of an application, it is first necessary to consider whether summary judgment is available at that stage of the proceedings:
   1. A Defendant may apply for summary judgment at any time, including before filing a defence. 
   2. A Claimant may not apply for summary judgment against a Defendant until the Defendant has filed an acknowledgement of service or a defence, unless the court gives permission (CPR r. 24.4(1)(a)) or a rule or practice direction states otherwise (CPR r. 24(1)(b)). 
6. If permission is required under CPR r. 24(1)(a), this can be sought within the same application, and determined at the same hearing, as the application for summary judgment FBN Bank (UK) Ltd v Leaf Tobacco A Michailides SA [2017] EWHC 3017 (Comm). 
7. If a summary judgment application is made (by any party) before a Defendant has filed its defence, the Defendant does not have to file a defence before the application is heard; the usual time limits do not apply (CPR r. 24.4(4)). However, importantly, this does not mean that the Defendant is not permitted to file a Defence in these circumstances (Natural Resources Inc v Origin Clothing Ltd [1995] FSR 280). There are important tactical considerations to weigh in the balance when deciding to file a defence in these circumstances:
   1. In some cases, the fact that no defence is required by the rules could be of significant assistance to the Defendant. The Defendant avoids the costs of preparing a defence. This may be particularly helpful where the Particulars of Claim contains numerous and lengthy (albeit hopeless) issues that it would be time consuming and expensive to respond to within a proper defence. 
   2. In other cases, the defence may serve a useful role at the hearing of a summary judgment application. The defence may provide a convenient manner in which to set out the reasons why summary judgment should, or should not, be granted. 

8. Thereafter, a summary judgment application can be made at any time including at trial. Devon and Cornwall Autistic Community Trust v The Cornwall Council [2015] EWHC 403 (QB) provides an example of a case in which the High Court found that it was appropriate to grant summary judgment (and strike out) at the outset of the trial. However, as a general rule, cases where summary disposal at trial will be appropriate will be very rare (Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550). 
9. In many cases, it will be most appropriate to make a summary judgment application before, or at the time of, filing the directions questionnaire. Indeed, the directions questionnaire for fast track, intermediate track and multi-track claims (Form N181) includes whether a party intends to make an application in the future. Also, Practice Direction 26.3(3)(a) specifically lists a party’s intention to apply for summary judgment as an example of information that is likely to help the court in determining allocation and assignment to a complexity band. 

(3) Making the Application: Procedural Requirements

10. There are a number of specific items that must be included in an application notice seeking summary judgment (CPR r. 24.5(1)). The application notice must:
    1. State that the application is for summary judgment.
    2. State that the applicant believes the respondent has no real prospect of succeeding on the claim, defence or issue to be determined.
    3. Identify concisely any point of law or document relied upon.
    4. State that the applicant knows of no reason why the disposal of the claim, defence or issue should await trial.
    5. Draw the respondent’s attention to their right to rely on evidence opposing the application.
11. The respondent must receive at least 14 days’ notice of both the date fixed for the hearing and the issues which it is proposed the Court will decide at the hearing (CPR r. 24.4(5)).
12. Evidence in relation to summary judgment applications must be filed as follows:
    1. As with applications under Part 23, the applicant’s evidence in support can either be set out within the application notice or be attached and served within the application notice (CPR r. 24.5(1)(c)); 
    2. The Respondent’s evidence must be filed at least 7 days before the hearing (CPR r. 24.5(3)(a)); and 
    3. The Applicant’s evidence in reply must be filed at least 3 days before the hearing (CPR r. 24.5(3)(b)). 
13. However, it is important to note that this does not prevent the applicant from relying on evidence that has already been filed and served (CPR r. 24.5(4)). 

(4) The Test for Summary Judgment 

14. The test for summary judgment will be familiar to most practitioners. Pursuant to CPR r. 24.3, the court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if:
    1. It considers that the party has no real prospect of succeeding on the claim, defence or issue; and
    2. There is no other compelling reason why the case or issue should be disposed of at a trial.
15. There is a wealth of case law in relation to how this test should be interpreted and applied. However, some key cases are summarised below.  

No Real Prospect of Success

16. The classic summary of the principles applicable to summary judgment is set out by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15]: 
    1. The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All E.R. 91;
    2. A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]; 
    3. In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman; 
    4. This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10];
    5. However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550; 
    6. Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] F.S.R. 3;
    7. On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.
    8. This summary was approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098; [2010] Lloyd’s Rep. I.R. 301 at [24]:

17. The term “mini-trial” is frequently used, but less often defined. In Okpabi v Royal Dutch Shell Plc [2021] UKSC 3, the Supreme Court found that the Judge had been drawn into conducting a mini-trial because:
    1. “[I]nstead of focusing on the pleaded case and whether that discloses an arguable claim, the court is drawn into an evaluation of the weight of the evidence and the exercise of a judgment based on that evidence.” [107]; and 
    2. “Being drawn into conducting a mini trial led to the court making determinations in relation to contested factual evidence that were not appropriate on an interlocutory application” [120]. 
18. Similarly, the question often arises as to what actually is a “short point of law”. In Commerz Real Investmentgesellschaft MBH v TFS Stores Ltd [2021] EWHC 863 (Ch), Chief Master Marsh gave the following guidance at [12]:  

The notion of shortness does not relate to the length of the document to be construed or the length of the material passage in that document; but it may relate to the length of the hearing that will be required and the complexity of the matrix of fact the court will have to consider. In my experience the court regularly deals with points of law and of construction of real difficulty on the hearing of an application for summary judgment.

19. As to the information that can reasonably be expected to be available at a trial, it is not sufficient for a respondent to simply argue that further information may ‘turn up’ prior to the trial. The respondent must satisfy the Court:
    1. Of the nature of the material it says will become available; and 
    2. Whether there are reasonable grounds to be believe that this material will add to or alter the evidence relevant to whether the claim has a real prospect of success. 

(Okpabi at [127] – [128] and Korea National Insurance Corp v Allianz Global Corporate & Specialty AG (formerly Allianz Marine & Aviation Versicherungs AG) [2007] EWCA Civ 1066).

Compelling Reason for Trial 

20. There are a number of authorities dealing with circumstances in which the Court has found a compelling reason for a trial. The issue is likely to be fact specific. For example, cases concerning a developing area of law (UBS AG v Rose Capital Ventures Ltd [2018] EWHC 3137 (Ch)) or where an appeal is pending (Daimler AG v Walleniusrederierna Aktiebolag [2019] EWHC 3197 (Comm)). 
21. However, it is less common for this aspect of the test for summary judgment to be a significant issue at the hearing of the application. In the recent decision of N&CJ Horton Property v Norman [2026] EWHC 959 (Ch) Mr Justice Leech at [16] held that the overriding objective of deciding cases justly and at proportionate cost was relevant to the issue of whether there was a compelling reason for trial and noted that“[i]t is rare for the Court to find a compelling reason for a trial, when it has concluded there is only one realistic outcome.”

(5) Combination with a Strike Out Application 

22. There is a substantial overlap between summary judgment under CPR Part 24 and applications to strike under CPR r. 3.4 (White Book 2026, para 24.0.1). It is therefore common for parties to apply for both summary judgment and strike out within the same application. This approach is confirmed by Practice Direction 3A, para 1.5 which provides: 

A party may believe they can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the interpretation of a document). In such a case the party concerned may make an application under rule 3.4 or apply for summary judgment under Part 24 (or both) as they think appropriate.

23. In such cases there is authority to suggest that the two applications can be taken together and a single test applied (Begum v Maran (UK) Ltd [2021] EWCA Civ 326 at [21]). In Maranello Rossi Ltd v Lohomij BV [2021] EWHC 2452 (Ch) at [25] HHJ Keyser QC used the terminology of “reasonable arguability” to cover the test under either rule. 
24. However, it should be remembered that there are distinctions between the two tests. In strike out applications, the Court will be more concerned with the statement of case, as opposed to any evidence that may be available (Swain v Hillman [2001] 1 All E.R. 91). In the recent decision of BG Atlantic Inc v Hay Hill Investments Ltd [2026] EWHC 226 (KB), the High Court held that: 

The main difference between an application for summary judgment and an application to strike out is that, on an application to strike out, the pleaded facts should be assumed to be true, and evidence to support claims made in the pleadings is inadmissible.

25. In some cases, the distinction will be of limited relevance; for example, where the parties agree the factual background, but it is argued that the claim cannot be sustained even on the agreed facts. In other cases, the difference will be more significant. 
26. Parties should mindful only to bring a strike out application alongside a summary judgment application in appropriate cases. Indeed, in AF Kopp Ltd v HSBC UK Bank plc [2024] EWHC 1004 (Ch), HHJ Hodge KC at [19] cautioned applicants as follows:

I have recently detected an unfortunate tendency for applicants to seek to bolster summary judgment applications by incorporating applications to strike out, even in cases where the latter relief is wholly inappropriate. I would encourage legal representatives to desist from this ‘scatter-gun’ approach, which only serves to divert the court’s attention away from the real issues which arise on the summary judgment application.

(6) Costs

27. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (CPR r. 44.2(2)(a)). 
28. As such, where a summary judgment application is successful, often the respondent will be ordered to pay the applicant’s costs. 
29. However, parties should be mindful of whether fixed costs may apply. Where the claim is for a specified sum of money which exceed £25 and summary judgment is granted, fixed costs will apply (CPR r. 45.16(2)(a) for claims issued after 1 October 2023). However, the Court retains a discretion to disapply fixed costs (CPR r. 45.16(1)). 
30. Where, an application for summary judgment is made but is unsuccessful, the applicant could consider seeking costs in the case or costs in the issue. This would mean that if the applicant is ultimately successful at trial and the allegations are made good, the costs of the summary judgment application will be recoverable. In Sharp v Blank[2016] EWHC 776 (Ch), a similar order was made. In that case, summary judgment applications were made on a number of issues in the claim, with mixed success. 
31. However, it appears that the circumstances in which the Court may be willing to make such an order are limited.  In Matrix Receivables Ltd v Musst Holdings Ltd [2024] EWHC 2167 (Ch) the Court noted that Sharp had turned on its own facts and went on to emphasise that:
    1. The usual starting point remains that the unsuccessful party will pay the successful party’s costs; 
    2. There is no requirement for a party that has successful opposed the summary judgment application to show that the application was unreasonably brought; and
    3. In that case, there was no reason to depart from the usual starting point. 

32. Similarly, in BTI 2014 LLC v Pricewaterhousecoopers LLP [2019] EWHC 3219 (Ch), the Court held that, the fact that the applicant might succeed on the issues at a trial, was not a good reason to refuse the respondent its costs of successfully opposing the application.  
33. If the summary judgment has been dealt with in less than one day, the usual rule is that costs should be summarily assessed at the conclusion of the hearing (Practice Direction 44, para 9.2(b)). As such, a statement of costs should be filed at least 24 hours before the hearing in readiness for summary judgment application (Practice Direction 44, para 9.5(4)(b)).

Conclusion 

34. Summary judgment can provide an important and powerful tool in appropriate cases. However, the practitioners should retain a sharp focus on the relevant legal test and procedural requirements at each stage of the application. 

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Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. 

This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.