Summary Procedure

The Summary 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 can be heard on written affidavit.

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

The Summary procedure may be used in the High Court in the following type of case

• where a fixed debt or sum is payable with or without out interest on foot of a contrac
• on a cheque, bill of exchange or on a bond for payment of a fixed amount
• where statutes fixes the sum due
• on a guarantee

The Summary procedure may also be used in relation to recovery of land against a tenant whose term has expired or been determined by notice to quit or for rent. There are number of other type of case in which a summary procedure may be used, including where  all the parties consent.

The summary procedure may be used for breach of contract where there is an unconditional obligation to pay a debt a fixed or ascertainable sum. In cases, where damages are sought, they must usually be assessed by the court in a full  / plenary hearing. be 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.

Where Applicable

In the case of summary proceedings without pleadings in certain types of prescribed cases,  a special summons in the prescribed form is to be used. The  procedure by summary summons may be adopted in the following cases / types of action:

• where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest;
• on a contract, express or implied including a bill of exchange, promissory note, cheque, or other simple contract debt;
• on a bond or contract under seal for payment of a liquidated amount of money;
• on a statute where the sum sought to be recovered is a fixed sum of money or is in the nature of a debt other than a penalty;
• on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only;
• on a trust;
• where a landlord seeks to recover possession of land, with or without a claim for rent or mesne profits against a tenant whose term has expired or has been duly determined by a notice to quit or for non-payment of rent;
• claims in which the plaintiff in the first instance desires to have an account taken.

The procedure by summary summons may be adopted by consent of all parties in other cases

Liquidated Sum (Debt)

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 reasonable value or sum in the case of restitution.

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, that  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.

Continuing interest in continuing rents may be claimed after commencement of the proceedings where they are due.

This happens in the majority of  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.

Particulars

In 2019 the Supreme Court held in a case (O’Malley) seeking summary judgement that the pleadings were insufficient and that they lack the requisite detail regarding the liquidated (fixed sum claimed. Sufficient detail must be given so that it is obvious to a reasonable person as to how the sum is calculated.

Account may be taken of documentation sent to the plaintiff defendant before the commencement. It appears necessary to refer to such correspondence if it is to be relied on for the purpose of specifying the claim.

Proceedings by Summary 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.

Every summary summons endorsed with a claim other than for an account which an appearance has been entered shall be set down before the Master by the plaintiff.  This is done by motion for liberty to enter final judgment for an amount claimed together with an interest or for recovery of land with or without rent etc. and cost.

Set Down before Master

The motion will be set down before the Master. At least four days’ notice must be given of the  hearing, before the Master. If the case is not contested, the matter may be dealt with summarily

The motion shall be for the first available day as the Master may fix not being less than four clear days after the service on the defendant.  It shall be supported by an affidavit sworn by the plaintiff or other person who can swear positively to the fact showing the plaintiff is entitled to the relief claimed, stating the belief of the deponent that there is no defence to the action.  A copy of such affidavit shall be served with the notice of motion.

Unless the Court otherwise orders a motion for liberty to enter judgment shall be heard on affidavit.  A party desiring cross examination of a deponent who has made an affidavit filed on behalf of the opposite party may serve on the party by whom the affidavit has been filed, a notice in writing requiring production of the person swearing the affidavit for cross-examination.

Unless the person is produced accordingly, his affidavit shall not be used in evidence unless by special leave of the Master or the Court as the case may be.  Where the Master has jurisdiction, he shall have the same power as the Court to hear oral evidence.

The defendant may show cause against motion by affidavit by offering to bring into Court, the sum endorsed on the summons.  Such affidavits shall state whether the defence alleged goes to all or part of the plaintiff\’s claim.  The Court may order the defendant in the case of a company that any officer attend to be examined on oath and produce books, documents, title deeds etc. as ordered.

Uncontested Cases

On hearing of motion, the Master in all uncontested cases may deal with the matter summarily and may give liberty to enter judgment for the relief claimed which the plaintiff may appear to be entitled to.  In the case of an action for recovery of land for nonpayment of rent, may ascertain the amount of rent or may dismiss the action generally and may make such order for the determination of the action as he thinks fit.

The application shall be supported by the affidavit of the plaintiff or some other person who can swear positively as to the facts, showing that the plaintiff is entitled to the relief claimed including such interest, stating that in the belief of the deponent, there is no defence to the action.

The Master may give liberty to enter judgment in the Central Office for the amount claimed. If  there is no valid claim, the claim may be dismissed. The Master will examine the affidavits and other paper to ascertain that they are sufficient

The Master may exercise discretion to award interest on the award  under the Courts Act, in the case of judgment in default of defence.

If in any case where the plaintiff is entitled to apply to the Master for liberty to enter final judgment,  the plaintiff claims interest on the whole or part of the monies from the date on which the cause of action accrued and the date of judgment, the Master shall transfer the application for hearing by the Court list  and the judge may make an award of interest for the period from the date the relevant event until  the date of the judgment under the Courts Act.

Judgement in Liquidated Sum (Debt) 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. This is proved by affidavit. The affidavit will set out the factual basis on which the plaintiff claims entitlement to the order soughtt. 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 defendant does enter an appearance the Master will grant an opportunity to file any replying affidavit as required. After the exchange of affidavits is complete, the Master will transfer the matter on the  application of the plaintiff, if he is satisfied the papers are in order.

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

Judgment may be obtained in a foreign currency.

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.

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

Where a summary has been entered, the Court may on application may vary 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.