Special Summons

Overview

Special summons usually raise questions of law. Either party may require an affidavit to cross-examine. The Court on hearing of the special summons has a broad discretion to determine questions and issues. It may adjourn the proceedings for a preliminary hearing with directions as to pleadings discovery as it may be necessary.

If the defendant can show that there is a substantial defence, then the Master of the High Court may be persuaded to transfer the case to the judge’s list for a plenary hearing. Otherwise, liberty will be given to enter summary judgment summarily. In this sense, the summary procedure operates as a filtering process.

The special summons procedure applies in the case of disputes that can be decided without verbal evidence of a full trial. A wide variety of claims may be taken by special summons. Generally, the case involves an issue or question of law rather than one of fact.  It applies to specialised proceedings such as disputes regarding the administration of a deceased’s estate, trustee matters and enforcement of mortgage. Special statutory provisions and procedures provide for the use of special summons procedures.

The only pleading is the special summons containing a special endorsement of claims. It must set out all necessary particulars of the relief sought. When the summons is issued, a return date will be given. If service is necessary, it must be done at least four days before

the return date. After the summons is issued, an affidavit verifying the claim must be sworn and filed. The matter comes before the Master of the High Court. He has powers to hear and determine the matter.  Alternatively, he can transfer the matter to the Court.

Types of Case

The procedure by special summons may be adopted in the following types of cases:

• administration of the real or personal estate of a deceased person;
• administration of the trust of any deed or instrument other than for wilful default or breach of trust;
• determination of any question affecting the rights or interests of persons claiming to be creditors, next-of-kin, heir-at-law of a deceased person or beneficiaries under a trust;
• the payment into Court of money in the hands of executors, administrators or trustees;
• a direction to executors, administrators and trustees to do or refrain from doing particular acts;
• approval of a sale, purchase, compromise or other transaction in connection with the administration of any estate or trust;
• determination of any question arising in the administration of an estate or trust or the ascertainment of any class of creditors, next-of-kin etc;
• relief under the Settled Land Acts, or Conveyancing Acts;
• certain applications regarding a minor’s property or settlements;
• questions regarding guardianship, care and maintenance of any infant;
• appointment of trustees or new trustees with or without a vesting or other consequential order;
• determination of questions in conveyancing transactions;
• relief between spouses as to property ownership;
• relief under the Trustees Act;
• sale, delivery of possession by a mortgagor or redemption, conveyance or delivery of possession by a mortgagee;
• relief in respect of lands lodged in Court in respect of compulsory acquisition;
• an interpleader order;
• applications in connection with the lodgement in Court of any funds, investment of funds lodged, payment out of funds;
• applications for the taxation or delivery of bills of costs and for delivery by any solicitor of deeds, documents and papers where there is no proceeding pending in which the application may be made; and
• other cases authorised by statute.

An indorsement of claim shall be made on every originating summons, (i.e. plenary summons, special summons or summary summons).

Pleading and Initial Procedure

The only pleading is the special summons containing a special endorsement of claims. It must set out all necessary particulars of the relief sought. When the summons is issued, a return date will be given. If service is necessary, it must be done at least four days before the return date.

After the summons is issued an affidavit verifying the claim must be sworn and filed. The matter comes before the Master of the High Court. He has powers to hear and determine the matter.  Alternatively, he can transfer the matter to the Court.

Every special summons shall be returnable for such day as the Master shall fix except where the parties consent to an earlier date or where no service is required, shall be not less than seven days from the date of issue.  This shall, where necessary, be served on the parties concerned at least four days before the return date.

An affidavit verifying the claim indorsed on the summons must be filed in the Central Office, and notice must be given to the parties concerned.

The Court may direct such other persons to be served with the summons as it may think fit.

Save to the extend the Court otherwise orders, proceedings commenced by special summons shall be heard on affidavit.  Party desiring to cross-examine a person who has made an affidavit may serve on the party, a notice in writing requiring production of the deponent for cross-examination.  Unless the deponent is produced, the affidavit may not be used without special leave of the Court.

Direction of Trial of Issues

If at any stage during the course of proceedings instituted by special summons, it shall appear to the Court that the determination of some question or fact is necessary for the proper decision or ruling as to the relief to be granted or as to the matter arising, the Court may determine such question or questions of fact by directing the trial of issues or in such manner whether summary or otherwise as may seem convenient for doing justice between the party.

Evidence as to the said question or questions of fact may be given orally or by affidavit or partly orally and partly affidavit as the Court thinks proper.

Masters Court Proceedings

In cases where the Master has jurisdiction, he shall have the same power as the Court to hear oral evidence or to direct additional service. The Master may decide the matter himself in cases where he has jurisdiction, or put the matter in the Court list for hearing.

In cases where the Master does not have jurisdiction and in such other cases as he decides to put on the list for hearing, the Master shall transfer the summons, when an order for hearing is made, to the Court list for hearing on the first opportunity.

The Master may extend the time for filing affidavits and give such directions and adjourn the case as he thinks fit for the purpose of such hearing.

On the hearing of any special summons, the Master, in cases within his jurisdiction, or the Court, as the case may be, may give judgment for the relief on which the plaintiff may appear to be entitled or may dismiss the action or matter or may adjourn the matter for plenary hearing as if the proceedings had been originated by plenary summons, such directions as to pleadings or discovery or settlement of issues as may be appropriate.  Generally, it may make such order for determination of the questions in issue as may seem just.

The Court may give any special direction regarding the carriage or execution of the order or the service thereof upon parties who are not parties as it may think just.