Summary Judgment (SJ)

The test:

The Claimant has no real prospect of succeeding on the claim or

The defendant has no real prospect of successfully defending the claim and

There is no other compelling reason why the case should be disposed of at trial.

Real

 better than merely arguable

 even if it is improbable it may have a real prospect but court will make a conditional order
 victory goes to the case which is more probable
 if court has the evidence and the parties addressed it then the court can decide on a short
point of law
 but the court should not resolve a complex problem of law or fact
 the court cannot allow a case to go for trial simply because there is a possibility of further
evidence arising

Burden of proof

Applicant adduces credible evidence → the overall burden of proof is on them.

Respondent has an evidential burden to merely rebut the applicant statement of belief.

The respondent's case needs some degree of conviction

Set off/Counterclaim

Set off/Counterclaim must have some prospects of succeeding; it raises a triable issue.

Where counterclaim is not deployed as a set off- the summary judgment may be given to the
claimant and a stay of enforcement pending trial of counterclaim.

- The stay of enforcement may be conditional upon the defendant paying the difference by a
specified date.

- A stay of enforcement is given if the facts of the claim and counterclaim are not so closely
linked.