Contested Cases
Contested Cases
Upon the hearing of a motion, the Court may give judgment for the relief on which the plaintiff may appear to be entitled or may dismiss the action or adjourn the case for a plenary hearing as if the proceedings had been originated by plenary summons. It may give such directions as to pleadings or discovery or settlement of issues or otherwise as may be appropriate. Generally, it may make such order for determination of the questions and issue in the action as may seem just.
In contested cases, the Master shall transfer the case when an order for hearing by the Court to the Court list for hearing on the first opportunity. The Master may extend time for filing affidavits and give such directions and adjourn the case before him as he shall think fit.
The Master may, on consent, adjourn the case for a plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings, discovery, settlement of issues and otherwise as may be appropriate.
The motion for liberty to enter summary judgment should be granted where there is no serious conflict as to a matter of fact and no real question of law arises.
Leave to Defend
If there is a bona fide defence, the matter may be adjourned to a full hearing. This would be appropriate where there are disputes of facts between the parties, which can be best resolved by a verbal /oral hearing.
Where a plaintiff has an uncontested claim, but the defendant has a counterclaim, there is discretion as to whether to permit judgment for the uncontested element. The entire circumstances may be taken into account.
There must be credible evidence of a real bona fide defence to the claim. The Court must be satisfied that there is a fair and reasonable probability of the defendant having a real, credible, real and bona fide defence.
The mere assertion of circumstances, which would constitute a defence, would not be enough. There must be credible evidence to support the defence. The defendant\’s hurdle is relatively low. It must be clear that the defendant has no case.
If there is a factual dispute, a summary disposal of the matter will not be possible. However, it is possible to apply to cross-examine a person who has made an affidavit to resolve disputes about facts. The Master may dismiss the application and grant judgment or grant leave to defend, with or without a full hearing.
Procedure
If the case is contested, time may be allowed for the defendant to file a replying affidavit. The Master may give directions on the required timing. This may cause the plaintiff to file a further affidavit.
The parties’ affidavits will disclose whether there is a genuine claim and defence. The Master may grant judgment and satisfy that there is no genuine defence.
If the Master is satisfied that the affidavits and other papers are in order and that the case is ready for hearing, he may transfer the case to the Judge’s list for hearing at the first opportunity. Alternatively, he may adjourn the case for a plenary hearing, and the Master may make directions as appropriate for pleadings and discovery
Conditional Leave
Leave to defend may be given unconditionally or subject to such terms as the security or time and mode of trial or otherwise as the Court may think fit. Where leave to defend has been granted, the defence must be given within the time stated or 14 days, if none is stated
Except in cases for recovery of land for nonpayment of rent, if it shall appear that the defence set up by the defendant applies only to part of the claim or that any part is admitted, the plaintiff shall have judgment forthwith such part as the defence does not apply to or is admitted.
This may be subject to such terms as the suspending execution or the payment of the amount levied or any part thereof into court by the Sheriff, taxation of cost or otherwise as the Court may think fit. The defendant may be allowed to defend the remainder of the plaintiff\’s claim.
Various Issues
If, on the hearing of a motion under the order, it shall appear that any claim which could not have been specially endorsed under order two has been included in the endorsement. On the summons, the Master or as the case may be make forthwith amend by striking out such claim or may deal with the claim specially endorsed as if no other claim had been included in the endorsement and allow the action to proceed as respects the residue of the claim.
In the case of any difficulty or doubt, the Master may transfer the case to the Court list for hearing notwithstanding that he might have had jurisdiction to deal with the case himself under the order.
Where a summary summons has been endorsed with a claim for an account or where the endorsement for summons involves taking an account and the defendant fails to appear, the Master may forthwith make an order for the proper accounts and all necessary enquiries and directions. Where in such case, the defendants does not after appearance by affidavit or otherwise satisfy the Court that there is some preliminary question to be tried, the Court shall forthwith make an order for proper accounts with all necessary inquiries and directions.
Application for orders above shall be made on by motion on notice and be supported by an affidavit stating concisely the grounds of the claim to an account.
Defence v Counterclaim
A counterclaim is a cross action independent of the claim. The court may hear a claim and counterclaim in a single proceeding if it is convenient to do so. A counterclaim by itself is not a defence to an action. (Summary Summons Practice and Procedure paragraph 8-145
In S&R Motors (Donegal) Ltd v Bradley Construction Clarke J set out the test to identify when cross claim or set of may amount to a defence.
- The Law
4.1 The test to be applied in deciding whether a party should be given leave to defend a summary judgment application was most recently addressed by the Supreme Court in Aer Rianta Cpt v. Ryanair Limited, [2002] 1 ILRM 381. In that case the court indicated that the test is as to whether, looking at the whole situation, the Defendant has satisfied the court that there is a fair and reasonable probability that he has a real and bona fide defence. As pointed out by Hardiman J., the test does not mean that the party must establish that he has a defence which will probably succeed; rather he must establish that it is probable that he has a bona fide defence.
4.2 Where the nature of the defence put forward amounts to a form of cross claim slightly different considerations may apply. In those circumstances the court has a wider discretion. Where the Defendant does not establish a bona fide defence to the claim as such but maintains that he has a cross claim against the Plaintiff, then the first question which needs to be determined is as to whether that cross claim would give rise to a defence in equity to the proceedings. It is clear from Prendergast v. Biddle (Unreported, Supreme Court, 21st July, 1957, Kingsmill Moore J.), that the test as to whether a cross claim gives rise to a defence in equity, depends on whether the cross claim stems from the same set of facts (such as the same contract) as gives rise to the primary claim. If it does, then an equitable set off is available so that the debt arising on the claim will be disallowed to the extent that the cross claim may be made out.
4.3 On the other hand if the cross claim arises from some independent set of circumstances then the claim (unless it can be defended on separate grounds) will have to be allowed, but the Defendant may be able to establish a counter claim in due course, which may in whole or in part, be set against the claim. What the position is to be in the intervening period creates a difficulty as explained by Kingsmill Moore J., in Prendergast v. Biddle in the following terms:-
“On the one hand it may be asked, why a Plaintiff with approved and perhaps uncontested claim should wait for a judgment or execution of judgment on this claim because the Defendant asserts a plausible but unproved and contested counter claim. On the other hand it may equally be asked why a Defendant should be required to pay the Plaintiffs demand when he asserts and may be able to prove that the Plaintiff owes him a larger amount”.
4.4 The courts discretion is to be exercised on the basis of the principles set out by Kingsmill Moore J. later in the course of the same judgment in the following terms:-
“It seems to me that a judge in exercising his discretion may take into account the apparent strength of the counter claim and the answer suggested to it, the conduct of the parties and the promptitude with which they have asserted their claims, the nature of their claims and also the financial position of the parties. If, for instance, the Defendant could show that the Plaintiff was in embarrassed circumstances it might be considered a reason why the Plaintiff should not be allowed to get judgment, or execute judgment on his claim, until after the counter claim had been heard, for the Plaintiff having received payment by dues the monies to pay his debts or otherwise dissipated so the judgment on a counter claim would be fruitless. I mentioned earlier some of the factors which a judge before whom the application comes may have to take into consideration in the exercise of this discretion”.
4.5 It seems to me that it also follows that a court in determining whether a set off in equity may be available, so as to provide a defence to the claim itself, also has to have regard to the fact that the set off is equitable in nature and, it follows, a Defendant seeking to assert such a set off must himself do equity.
4.6 On that basis the overall approach to a case such as this (involving, as it does, a cross claim) seems to me to be the following:-
(a) It is firstly necessary to determine whether the Defendant has established a defence as such to the Plaintiffs claim. In order for the asserted cross claim to amount to a defence as such, it must arguably give rise to a set off in equity, and must, thus, stem from the same set of circumstances as give rise to the claim but also arise in circumstances where, on the basis of the Defendants case, it would not be inequitable to allow the asserted set off;
(b) If, and to the extent that, a prima facie case for such a set off arises the Defendant will be taken to have established a defence to the proceedings and should be given liberty to defend the entire (or an appropriate proportion of) the claim (or have same, in a case such as that with which I am concerned, referred to arbitration);
(c) If the cross claim amounts to an independent claim, then judgment should be entered on the claim but the question of whether execution of such judgment should be stayed must be determined in the discretion of the court by reference to the principles set out by Kingsmill Moore J. in Prendergast v. Biddle.