Arrow/? claimform - old HBOS Card was stayed now Lifting Application for SJ

[jack21]

Hi

 

Just got back from the hearing and the stay was lifted, but the summary judgement was dismissed.

 

The judge was really grumpy towards me and acted like he was the solicitors best friend. He even said to him he thinks they will be successful if they get the full terms of conditions.

 

However he had to rule in my favour on the summary judgement because their documentation is all over the place.

 

I just wanted to know what the unenforceable credit agreement means? Is it that a judgement can be made but any enforcement action would have to be dismissed?

[BazzaS]

......

and that this leads to no realistic prospect of them being granted summary judgment.

............

 

Given this you will oppose any attempt to obtain summary judgment, on those grounds, and seek your costs when you successfully oppose their application for summary judgment.

 

Hi

 

Just got back from the hearing and the stay was lifted, but the summary judgement was dismissed.

 

.............

 

However he had to rule in my favour on the summary judgement because their documentation is all over the place.

 

 

Did you do as I advised regarding the summary judgment application?

Did you ask for your costs in their unsuccessful application for summary judgment?

What was the outcome regarding summary judgment application costs?

[AndyOrch]

Well if they had insufficient for summary judgment....whats going to change when it gets to trial ?

 

Well done so far so good.

 

 

Andy

[jack21]

Bazza, I did not apply for costs for the summary judgement application. To be honest I would not have had much of a chance of getting them anyway with the mood the judge was in, especially as he had granted to lift the stay.

 

Andy, well yes as the judge has ruled in my favour re the summary judgement, it does suggest that I have a good chance of winning at trail.

 

The solicitor wanted to have a chat before the hearing,

in fact we had two separate chats,

 

 

in the first he told me that my defence was not appropriate to the type of hearing we were in.

 

 

In the second chat,

after he made a telephone call,

he was trying to get me to negotiate a settlement figure before the hearing.

 

 

I told him that the claimant had allowed it to get to this hearing stage before making such an approach and I wanted to see what the judge was going to say as I thought I had a very good chance of succeeding.

 

So I was reasonably confident going into the hearing, that was until I met the judge

[BazzaS]

Well if they had insufficient for summary judgment....whats going to change when it gets to trial ?

 

Well done so far so good.

 

 

Andy

 

2 different kettles of fish.

If they had enough for a summary judgment, then they certainly had enough if it was to go to trial, as the summary judgment says "so clear that it doesn't need a trial"..

Yet, it doesn't work the same way in reverse.

 

They could have a reasonable strong case (and thus likely to win at trial), but there might be a defence with SOME realistic prospect of success. These two are not mutually exclusive. Thus there shouldn't be a summary judgment (as the defence needs to be heard in detail), but one can't infer from that that they won't win at trial, only that the issues need to be considered in detail (and at trial rather than at a summary judgment hearing, which isn't a 'mini-trial').

[AndyOrch]

Summary judgment as tool to control litigation costs

 

Summary judgment is a procedure in which a party to an action (or the court, of its own accord), can apply for an early determination of all or part of a claim without the need for a full trial.

There is still a court hearing, but it is greatly simplified. For example, there is no expert evidence or cross examination of witnesses.

The summary judgment procedure can only be used in certain claims, in which it can be argued that:

 

• a claim or defence has no real prospect of succeeding at trial, on either the entire case or a particular issue

• there is no other compelling reason why the case or issue should proceed to trial

 

A 'real prospect of success' means there is more than just an arguable case: it must actually have a reasonable chance of winning. However, even if the application is not successful, in some circumstances it may still offer a tactical advantage, because in preparing for the application, the responding party will be forced to set out its position and evidence earlier than usual.

 

The procedure

 

An application for summary judgment is usually only made once the defence or acknowledgement of service has been filed.

 

Summary judgment applications are suitable in cases where the party making the application considers that the case is a clear cut matter of fact or law, in which oral evidence is not required. It is also used when the applicant considers that the other party has insufficient evidence to prove its case. There are considerable potential savings in terms of time and costs.

 

An application notice must be completed, then filed and served along with the supporting evidence - usually a witness statement together with copies of any supporting documents. The supporting evidence will set out the reasons why the applicant considers summary judgment to be appropriate.

 

The respondent also has an opportunity to rely on written evidence, which must be served in good time for the hearing.

At the hearing, the applicant (or usually their solicitor or counsel) will set out the reasons why they consider summary judgment is appropriate. The respondent then has a chance to advance counter-arguments.

Although the burden of proof is on the party making the application, the responding party will usually be required to make points in his favour in order to demonstrate to the judge that his case has sufficient potential to succeed. The judge will usually make an order there and then, including an order for legal costs.

 

The court will not grant summary judgment when it is satisfied that there is some other reason - besides the merits of the case - for the matter proceeding to trial; for example, the respondent needs time to investigate the claim and has not yet had chance to do so.

 

What the court may order

 

There is a wide range of possible orders open to the judge on these applications, including:

 

• if the court finds wholly in favour of the applicant then the applicant will be awarded judgment and the case will be disposed of that way (subject to any appeal)

• the court may make a conditional order that the respondent must take a particular step (for example to pay some money into court) in the action

• summary judgment can also be granted in relation to a part of a claim or a particular issue only. If this happens, that aspect of the claim is resolved and the remainder of the claim proceeds to trial in the usual way

• if the application is unsuccessful, it will be dismissed and it is likely that the applicant will be ordered to pay costs to the respondent as well as bearing its own costs. These costs can be significant

 

Each case will be judged on its merits in terms of the costs order made, and the court has the power to make further directions about the future management of the case at these hearings.

What does this mean?

 

• summary judgment is a useful tool to obtain determination of suitable claims at an early stage, and make potentially large savings in costs and time

• however, it is only suitable for clear-cut cases which have arisen out of a straightforward point of law and/or fact and where no oral evidence is required

 

What should you do?

 

• consider whether your claim is one which may be suitable for dealing with by way of an application for summary judgment. If your case is complicated and/or will require oral evidence then it is not likely to be suitable; however, if it is fairly straightforward and can be dealt with by examination of documents alone, then it is more likely to be able to be dealt with by way of summary judgment

• consider the risk that a judge may not award summary judgment in your favour: you may consider that your opponent has an un winable case, but the judge, as an objective person, may see things differently! If you do not win, then you will be likely to have to pay your opponent's costs associated with the application, as well as your own

• seek early advice on the merits of your case as a whole and the likelihood of success at trial and/or its suitability to be addressed by way of summary judgment application

[jack21]

So I should of applied for costs. The judge did say at the end of the hearing that he will be making no order for costs. But since I did not apply for them I suppose he did not need to.

 

Can you apply for costs from a previous hearing retrospectively, i.e. at the judgement hearing?

[AndyOrch]

Even if you had........he wouldn't have entertained it

[jack21]

Yes that is what I was thinking. It would of probably made him more vexed with me than he already was.