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.
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.
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.
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.
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 the to defend the claim.
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 pleanary hearing as if the proceedings had been originated by pleanary 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 plenary hearing as if the proceedings had been originated by pleanary 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, 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 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 plenary hearing, and the Master may make directions as appropriate for pleadings and discovery.
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.
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
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.