Summary and Special Procedures

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.

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  account are is required to be  taken.

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.

Special summons usually raise questions of law. Either parties may require make of 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 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 judges 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 trail. A wide variety of claims may be taken by special summons. Generally, the case involves an issue or question of law, rather than on 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 use of special summons 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, it will be given a return date. 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.

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, 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 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. 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.

Insert re summary judgment from banking

Leave to defend may be given conditionally or on such terms as to  security, time or mode of trial as might be directed. Where leave to defend has been granted, the defence must be given within the tie stated or 14 days, if none is stated.

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. 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.

The motion will be set then 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 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 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. The Master may exercise discretion to award interest under rtion for award interest under the Courts Act, in the case of judgment in default of defence.

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.

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.

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, 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 defendants hurdle is relatively low. It must be clear  that the defendant has no case.

Judgment may be obtained in a foreign currency. The Court registrars have power to award interest. It may be necessary to apply to 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 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.

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.