Summary Procedure Issues

The Procedure

There is a summary procedure in the High Court, which may be used in cases where a full hearing or so-called “plenary” hearing of witnesses is or may be unnecessary. This may occur where there is little or no dispute as to the fact. In summary cases, the evidence is by way of written affidavit.

The summary summons procedure is substantially shorter and does not involve full pleadings such as statements of claims and defenses etc.  A claimant may obtain summary judgment quickly relatively quickly. Many such cases are debt collection or land recovery cases, where there is no real or substantial dispute.

Cases Available

The summary procedure may be used in the following cases

• for recovery of a fixed or ascertainable sum based on the contract
• on a cheque promissory note or bond
• on foot of statute
• for recovery of monies due under a guarantee
• for recovery of monies due under  a trust
• where a landlord seeks  recovery of possession of land with or without a claim for rent where the tenancy has expired
• for non-payment of rent.
• where accounts are required to be taken.

The summary procedure may be used for breach of contract where there is an unconditional obligation to pay a debt or  a fixed or ascertainable sum. In cases where damages are sought, they must usually be assessed by the court in a full/plenary hearing. used. If the case is not defended, the court may refer the case for ascertainment and measurement of damages to judge who will hear (uncontroverted) oral evidence of the quantity of damage and make an award accordingly.

In the case of a liquidated sum, the sum must be ascertainable or capable of being mathematically ascertained. This will not be the case where damages need to be ascertained or measured. Similarly, it may also be the case where the claim is to pay a reasonable value or sum in the case of restitution.

The summary procedure may be used to recover land against a tenant whose term has expired or been determined by notice to quit or for rent. A summary procedure may also be used in a number of other types of cases, including where all the parties consent.

The Summons

A special form of High Court summons is used in summary cases. A special endorsement is provided, which specifically sets out all particulars of the claim, the relief claimed and the grounds on which it is based. In the case of a claim for money due, it must state the date of the contract and the condition by which the money is due. In the case of recovery of property details of the tenancy and its termination must be given. The case must give sufficient particulars to the defendant to allow it decide whether to defend or not.

Where  a liquidated sum is claimed, the summons must state the amount claimed  for costs and must state that on payment of this sum within six days of service, the proceedings will be stayed. If the defendant fails to enter an appearance within eight days, the claimant can obtain judgment in the Central Office without the matter proceeding to Court.

This happens in the majority of the debt collection cases. The cases never appear in the case lists, nor are they mentioned in Court. Final judgment is entered by giving proof of the service of the claim and proving the debt by filing an affidavit setting out the claim.

Under the summary procedure, judgment in the Central Office may be obtained if there is no appearance entered. If the defendant enters an appearance, the plaintiff may not proceed to obtain judgment in the Central Office but must issue a motion to seek final judgment before the Master of the High Court.

O’Malley Case

Bank of Ireland Mortgage Bank v O’Malley [2019] IESC 84 requires the Plaintiff’s claim to be sufficiently pleaded and particularised.

The Supreme Court in that case indicated that where.

• Plaintiff’s claim was sufficiently pleaded and particularised.
• adduced evidence of a prima facie case,
• the court would then enquire whether there is a fair and reasonable probability that the Defendant will have a real or bona fide defence.
• and if so whether this goes beyond mere assertion and is supported by evidence

Procedure

The claim is proved by affidavit. The affidavit will set out the factual basis on which the plaintiff claims entitlement to the order sought. The claimant/plaintiff must state that there is no bona fide defence. If the defendant does not appear and the matter is uncontested, the Master must be satisfied as to service before dealing with the matter.

If the case is contested, time may be allowed to 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.

If there is a factual dispute, then a summary disposal of the matter will not be possible. It is possible to apply to cross-examine a person who has made an affidavit in order to resolve disputes about facts. The Master may dismiss application and grant judgment or  grant leave to defend, with or without a full hearing.

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. Otherwise, liberty will be given to enter summary judgment summarily.

The High Court considers whether to give summary judgment. 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 best be resolved by a verbal oral hearing. Leave to defend may be given conditionally or on such terms as to security, time or mode of trial as might be directed.

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.

Judgment may be given for part of the amount claimed. This may be undefended, or there may be no tenable defence. The balance may be disputed.

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. 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, 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.

Judgement

Judgment may be obtained in a foreign currency.

The Judge may award interest for the period from the date of the relevant event until the date of the judgment under the Courts Act. The Master may exercise discretion to award interest under the Courts Act in the case of judgment in default of defence. The Court registrars have power to award interest. It may be necessary to apply to the Court in order to make a judgment inclusive of interest.

Where there are a number of defendants, some of whom appear and some of whom do not, final judgment may be entered against those who do not appear, summarily  in the Central Office. Judgment can only be entered where the affidavits and proof are in order.

There are certain categories of case in which summary judgment is not permitted. This includes certain consumer credit and moneylender claims.

Where a summary judgment has been entered, the Court may vary on application or set it aside. This will generally only happen where there was some irregularity in the procedure or where the defendant has a good defence and justice requires that he be given leave to defend the claim.

Judgment may be given for part of the amount claimed. This may be undefended, or there may be no tenable defence. The balance may be disputed.