Summary Judgment: The Procedural Weapon that Can Tip the Balance

There's a particular moment in commercial litigation that I find genuinely satisfying. It's the moment you read the defence — properly read it, against the pre-action correspondence, against the contemporaneous emails, against everything the other side said before they had a solicitor telling them to say something different — and you realise it doesn't add up.

That moment matters, because if the defence doesn't add up, you might not need a trial to prove it.

What summary judgment actually is

Summary judgment is an application under Part 24 of the Civil Procedure Rules. The court can give judgment without a full trial if the defendant has no real prospect of successfully defending the claim — and there's no other compelling reason why the case should go to trial.

That last part is important. It's not enough for the defence to be weak, or inconvenient, or commercially embarrassing. It has to have no real prospect of success. The threshold is deliberately set to exclude cases that look bad but contain a genuine disputed issue of fact that a judge should hear properly. Courts don't grant summary judgment lightly.

When the facts are right for it, though, they do grant it.

The defence that contradicts itself

I'm currently instructed in a breach of contract and breach of trust case. The defendant's pre-action correspondence told one story. The contemporaneous emails between the parties told the same story — events as they actually happened, captured in writing at the time, with no incentive to embellish or strategise.

Then the defence arrived, and it told a different story entirely.

That's the diagnostic. When a defence materially departs from what a party was saying before litigation started, you have to ask: why?

Sometimes there's a legitimate explanation — better information, a misunderstanding that's now been clarified, documents that have come to light. Often, particularly in commercial disputes, the defence reflects what's needed to resist the claim rather than what actually happened.

Courts notice this. A defence that cannot be reconciled with a party's own prior correspondence is a defence in significant difficulty. When the contemporaneous documents — the emails, the invoices, the board minutes, whatever it may be — point consistently in one direction, the defendant's task at trial becomes significantly more difficult. They'd essentially be asking a judge to prefer their reconstruction over their own written record.

That's exactly the kind of case where summary judgment is worth serious consideration.

Why it's a lever, not just a legal tactic

One thing worth being clear about: summary judgment is not just a claimant's weapon. Defendants can apply too. If you've been served with a claim that has no real prospect of success — a debt you've already paid, a contractual claim that misreads the agreement, a case built on a factual premise the documents simply don't support — you don't have to wait for a trial to say so. Part 24 is available to either party.

The commercial reality of litigation work is that most businesses don't want to be in court. Even businesses that are wrong, and know they're wrong, would rather negotiate a resolution than sit in front of a judge. Litigation is expensive, disruptive, and unpredictable even when your position is strong.

An application for summary judgment changes the dynamic. It signals to the other side — unambiguously — that you've looked at the merits and you're confident enough to ask the court to decide without a trial. That's a serious step, and the other side knows it. In my experience, a well-prepared Part 24 application, supported with a clear skeleton argument that lays out exactly why the claim or defence can't be sustained, can produce one of two valuable outcomes: summary judgment itself, or a material shift in the settlement dynamic.

Both are good outcomes for the client - whether you are claiming or defending - albeit subject to cost considerations. 

When it works and when it doesn't

Summary judgment is most effective where the key facts aren't genuinely disputed — they're just being disputed on paper. There's a difference. If a defendant is saying "I never agreed to those terms" but there's a signed contract and six months of emails referring to those terms, that's not a genuine dispute of fact. It's a position.

It works less well where the case genuinely turns on witness credibility, or where there are factual issues that need to be tested through cross-examination. Courts are reluctant to deprive a party of a trial in those circumstances, and rightly so. Part 24 is not a shortcut past genuinely contested issues — it's a mechanism for dealing with claims or defences that are, in the words of the rule, not real.

The assessment has to be honest. I've advised clients against summary judgment applications where the facts warranted it, because the specific disputed issues were ones a court would want to hear. Getting that analysis right matters because an unsuccessful application wastes costs and can, in some circumstances, actually embolden the other side.

The costs question

There's something that needs saying honestly about summary judgment applications, because a good solicitor will tell you this before you commit to running one.

If you apply and lose, the court will almost certainly order you to pay the other side's costs of the application — as well as your own. That's a real financial consequence. It's one of the reasons the assessment has to be rigorous before you pull the trigger.

What it doesn't mean is that you've lost the case. An unsuccessful Part 24 application is a setback, not a judgment. The claim or defence continues, the case proceeds to trial, and the substantive issues remain live.

What often happens in practice, following a well-judged, well-timed application, even one that doesn't succeed outright, is that it can fundamentally change the temperature of a dispute. The other side has now seen your skeleton argument. They know how you're framing the case. They've watched you demonstrate enough confidence in your position to invite the court to decide it early. That changes conversations. In my experience, some of the most productive settlement negotiations happen in the shadow of a Part 24 application, not after a trial.

The practical question

If you're a business involved in a commercial dispute, and the other side's position looks very different from what they were saying six months ago, it's worth asking your solicitor a direct question: does this claim or defence have a real prospect of success?

If the answer is no — or even "it's very hard to see how" — then summary judgment deserves serious consideration. Not as an aggressive gesture, but as a rational, costs-efficient way to resolve a case that probably shouldn't need a three-day trial to decide.

Sometimes the documents say it all. The job is knowing when to ask the court to look at them.

My approach to disputes is always the same: identify the real commercial problem, work out the available leverage, and find the most effective route to an outcome.

If you're involved in a commercial dispute and want to talk through strategy, I'm always happy to have an initial conversation.