Summary judgment applications (Rule 9-6) are intended to weed out those claims and responses that have no merit and will fail at trial. If you can show that the defendant has no real defence, you may be able to obtain summary judgment against them, without having to go through a trial. Similarly, if you can show that the plaintiff has no claim, you may be able to get the Court to dismiss the matter without trial. An application strike is a “chambers proceedings”. For more information on bringing an application to chambers, see Chambers Applications.
The main question that the Court considers on these applications is whether there is any genuine issue between the parties that requires a trial to resolve. Either a master or a judge can hear summary judgment applications. Summary judgment allows you to resolve the issues early on, saving you time and money.
Typically, a summary judgment application is made only after a response has been filed and the defendant is defending the proceeding. However, in some situations, a summary judgment application can be made where the defendant has not filed a response. See Default Judgment.
If a summary judgment application is unsuccessful, that will simply mean that the matter will go to a full trial. If you bring a summary judgment application and lose, this does not mean that you lose the entire case – just that you were not successful in obtaining summary judgment.
When You Can Seek Summary Judgment
If you are the plaintiff, you may apply for summary judgment under Rule 9-6 on the grounds that:
- The defendant does not have a defence against all or part of your claim or
- The defendant does not have a defence against your claim except about the amount
In this case, you must be able to prove the amount you are owed. If you are the defendant, you can apply for summary judgment on the ground that there is no merit to all or part of the claim that the plaintiff is making against you.
What Evidence Do You Need?
Witnesses are not permitted in a summary judgment application. All evidence is set out in affidavits. This means that the information in your affidavit must be very clear and accurate.
Unlike an application to strike under Rule 9-5, the Court does not assume that the facts pleaded are true. You need to put forward evidence supporting the facts that your application is based on.
The person who swears any affidavit supporting your application must have direct knowledge of the facts contained in the affidavit. In other words, the person swearing the affidavit should not give evidence about facts that someone else told them. Keep in mind that if there is any genuine dispute about the facts of the case, summary judgment is probably not appropriate. Summary judgment is most appropriate when one side is entitled to judgement as a matter of law. For more guidance see Affidavits.
If you are the plaintiff, your affidavits must set out:
- The facts that prove the claim you are seeking judgment on and
- Confirmation that the person swearing the affidavit knows of no facts constituting a defence to the claim you are seeking judgment on, except possibly as to the amount of the claim
If you are the defendant, your affidavits must set out:
- The facts that prove that there is no merit in the plaintiff’s claim and
- Confirmation that the person swearing the affidavit knows of no facts that support the claim
You may want to consult a lawyer when you prepare your affidavits to make sure that you have included everything necessary and that they do not contain information that should not be included. The affidavits determine the success or failure of your summary judgment application. For more information on finding a lawyer, see Get Help.