How to Speed-up or Knock-out Claims in the Civil Court – Summary Judgment and Strike Out Applications

The court system is often criticised for prolonged delays in determining disputes. Summary judgment and strike out applications are two examples of procedures which, if used correctly, can drastically shorten the length and cost of court proceedings.

Many potential litigants are unaware of these procedures and believe that any litigation will incur large legal costs and take considerable time. Knowing the availability and application of summary judgment and strike out procedures is key in deciding whether to advance your claim in court.

Summary Judgment

Summary judgment acts as a legal accelerator, facilitating the efficient resolution of cases without resorting to a full trial. This approach cuts to the core of the issue, saving time and resources [1].

Summary judgment is sought when a party believes there is no genuine dispute, and a full trial would offer little to no value in resolving the matter. It is based on the belief that the applicant's case is so strong that it should be decided without proceeding to a full trial. The court determines whether a genuine dispute exists, evaluating the evidence and arguments from both parties.

For example, a summary judgment procedure could suit a situation where A has a written contract for B to build a new structure. The costs, design, timing, and other substantial elements of the build are settled, and A is refusing to pay B for the build. B can then enforce the contract by way of summary judgment, saving the costs of a full trial.

Whilst generally brought by the plaintiff, the procedure can also be brought by the defendant, such as in situations where the plaintiff is proceeding against the wrong defendant [2].

Strike Out

In contrast, strike out applications are employed when a party argues that the opposing party's claim is fundamentally flawed or legally unsound. The applicant must demonstrate that the causes of action are so untenable that they cannot possibly succeed, and it is impractical to require the case to pass through the usual procedural hurdles [3]. However, it is not appropriate where there are existing factual disputes.

Situations that may justify strike out include those which are a duplication of other proceedings, where a claim is brought with an improper motive (such as an abuse of process), or where the party has no right to bring the claim (such as a claim time-limited by legislation).

While normally the realm of the defendant, a plaintiff can bring a strike out application. For instance, where the defendant responded with a counterclaim.

What are the advantages of these processes

Summary judgment and strike out are both available when the merits of the opponent’s case are weak. However, strike out also applies where pleadings are baseless [4]. Both are usually made by way of an interlocutory application to the court [5], and have a relatively high legal threshold to meet.

The advantage of both procedures is their lower price tag. While the actual costs will depend on the specifics of your case, summary judgment and strike out procedures have the potential to cost less than $10,000 in the High Court, and less than $6,000 in the District Court. This is a fraction of the cost of a full trial. In addition, the successful party may be able to recover some of their costs from the other party.

There are some situations where these applications are not available as a matter of law or are ill-suited [6]. It is important to note that summary judgment and strike out are only advisable where there is no real basis for the claim. If these procedures are started, and a court then declines the application, it can lead to more costly and vigorous litigation overall.

In conclusion

Deciding whether to pursue summary judgment or a strike out application depends on the circumstances of each case. These procedures can save both time and money.

It is also important to recognise that other procedures for avoiding a full trial exist, such as a default judgment or a stay of proceedings. In any litigation, parties should aim to promote the prompt and efficient resolution of the dispute, regardless of these procedures.

If you have any questions relating to summary judgment or strike out procedures, or you would like some advice on your chances of success under one of these applications in court, contact our experienced civil litigation team on [email protected] or call 03 441 2743.