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More civil procedure questions and more answers from our panel of district judgesQ On a summary judgment application, whether by claimant or defendant, is the burden of proof on the applicant rather than the respondent? That interpretation appears to be consistent with the negative way the test has been expressed in the Civil Procedure Rules 1998 (CPR) rule 24.2 (that is to say, unless the applicant can show the opponents case or issue has no real prospect of success at trial, summary judgment shall be granted).

Indeed, if the evidence adduced at the hearing shows that it is possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order instead (PD24 paragraph 4).

Do the judges agree?

A There is no question of a burden of proof.

Evidence is not tested on these applications in the sense of determining whether a fact is proved on the balance of probabilities.

It is of course for the applicant to satisfy the court that the respondent has no real prospect of succeeding (and see Green and another v Hancock (2000) Ch, 11 July, Ferris J ).

Q Am I correct in my understanding that the court is not obliged to set aside a judgment where the claim form has not been served (such a situation not being covered by CPR rule 13.2)? If I am then it would seem the court has a discretion to allow the judgment to stand even if the defendant has acted promptly in making his application to set aside.

A No, you are not correct.

Rule 13.2(a) clearly does require the judgment to be set aside.

This is because the condition in rule 12.3(1)(b) has not been satisfied as the time for filing an acknowledgment of service has not expired.

Such time can only start to run from the date of service of the claim form.l Readers questions for the panel may be e-mailed to: kim.davies@lawsociety.org.uk.

The answers are the view of the panel and should not be considered binding on any court