Summary Judgment Or Order 14 Proceedings

What is Summary Judgment or Order 14 proceedings?

When a person has been sued (i.e. a defendant) and has:

• Entered appearance in the lawsuit (i.e. his lawyer has filed a document called a “Memorandum of Appearance” with Court); and
• Filed and served his defence in the lawsuit (i.e. his lawyer has filed a document called a “Defence”, or a “Defence and Counterclaim” with Court, and served the same document on the plaintiff’s lawyers),

but it is clear that the defendant does not have a real defence to the claim, i.e. the claim is clearly uncontestable, then the plaintiff may apply to court to obtain judgment against the defendant in respect of the defendant’s defence, without going through the process of a full trial. Such a judgment is called a “summary judgment”.

The summary judgment process is also available to a defendant who has a counterclaim against the plaintiff in a lawsuit.

The rationale is that if there were no real issues to be determined at trial, it would be unfair for the plaintiff to wait until trial before his unchallengeable claims are recognised.

When can an application for Summary Judgment be made?

An application for summary judgment must be made within 28 days after pleadings* are closed, unless the court orders otherwise.

Pleadings are deemed closed:

• 14 days after the service of the “Reply” and/or “Defence to Counterclaim”**; or
• 14 days after the service of the Defence, if there is no “Reply” and/or “Defence to Counterclaim”;

What does the plaintiff need to show in Summary Judgment proceedings?

The plaintiff has to show that it has a prima facie case.

What this means is, the plaintiff must show that its case is one which can be accepted on the face of documentary evidence and affidavits (i.e. sworn statements) alone, such that the Court can be satisfied that there is no reason for the case to go through the normal (and lengthy) litigation process all the way to trial.

What does the defendant need to show in Summary Judgment proceedings?

To prevent summary judgment from being entered, a defendant must show that:

• There is a fair or reasonable probability that he has a real or genuine defence;
• There are issues or questions which ought to be tried (i.e. determined at trial); or
• For some other reason, there ought to be a trial. This has been broadly interpreted by the courts to mean that there must be circumstances that call for further investigation.

If the Court is satisfied that any of the above exists, the Court will grant the defendant leave to defend – which, depending on the circumstances, may or may not be accompanied with certain conditions to be fulfilled by the defendant.

It is important to note that if all the defendant provides is a mere assertion, contained in an affidavit (i.e. a sworn statement), of a given situation which forms the basis of his defence without any substantiation whatsoever, the Court is unlikely to be satisfied that any of the three factors above have been met. Similarly, if there is documentary evidence, but the defendant’s case is inconsistent with such evidence, then the Court will not give any leave to defend.

What is the role of the Court in Summary Judgment proceedings?

The role of the Court is to analyse the claim and the defence as a whole, based on documentary evidence and affidavits, and come to a decision on whether summary judgment should be granted to the plaintiff.

What are the orders that can be made by the Court?

Common orders which the Court can make include:

• Dismissing (i.e. rejecting) the application for summary judgment – i.e. the lawsuit will proceed to trial;
• Granting summary judgment to the plaintiff – i.e. the plaintiff will be allowed his claim(s) in the lawsuit;
  • [only if the defendant has a plausible counterclaim] Granting summary judgment to the plaintiff, but staying execution of the judgment (i.e. suspending the imposition of the judgment) until after the defendant’s counterclaim is heard at trial;
• Granting the defendant unconditional leave to defend – i.e. the lawsuit will proceed to trial; or
• Granting the defendant conditional leave to defend – i.e. the lawsuit will proceed to trial, provided that certain conditions stipulated by the Court are satisfied (such as, for example, the defendant paying a sum of money into Court).

Outlined below are some reasons for the different orders that can be made by the Court in an application for summary judgment.

(1) Application dismissed

The plaintiff’s application for summary judgment is misconceived, as the plaintiff knew that the defendant had relied on a contention which would entitle the defendant to unconditional leave to defend.

In other words, the plaintiff knew that it did not have a prima facie case but chose to make an application anyway. The Court will reject such an application.

(2) Summary judgment granted to the plaintiff

The defendant has not been able to convince the Court that:

• There is a fair or reasonable probability that there is a real or genuine defence;
• There are issues or questions which ought to be tried; or
• There is some other reason why there ought to be a trial.

(3) Summary judgment granted to the plaintiff, but execution of the judgment is stayed (i.e. suspended) until after the defendant’s counterclaim is heard at trial

The defendant has not been able to convince the Court that:

• There is a fair or reasonable probability that there is a real or genuine defence;
• There are issues or questions which ought to be tried; or
• There is some other reason why there ought to be a trial.

However, the defendant has raised a plausible counterclaim.

(4) Defendant granted unconditional leave to defend

The defendant has convinced the Court that:

• There is a fair or reasonable probability that there is a real or genuine defence;
• There are issues or questions which ought to be tried; or
• There is some other reason why there ought to be a trial.

(5) Defendant granted conditional leave to defend

The Court is nearly prepared to give judgment for the plaintiff, but at the same time cannot say for certain that the defence is so hopeless such that there is no defence at all.

As such, if the defendant is to continue maintaining its defence in the lawsuit, some commitment from the defendant is required. This preserves the plaintiff’s position pending trial.

Depending on the nature of the order made, and whether the order was made by a Registrar or a Judge, an order made at the end of the summary judgment hearing may be appealed against.