Summary judgments in the dock

Barry Samuels says that too many summary judgments are being obtained in cases where there is a real and arguable defence to the plaintiff's claim.

The summary judgment procedure is over-used and widely abused, yet there is a place for it. The purpose is to enable a plaintiff to obtain judgment without trial where there is no possible arguable defence to the plaintiff's claim.

However, plaintiffs often make summary judgment applications in cases where they know (or ought to know) that there is an arguable defence, and it is often tempting for the district judge to treat the hearing as a trial by affidavit and to lose sight of the fact that the plaintiff has to prove beyond any reasonable doubt that there is no arguable defence to the claim. The defendant need only show that the defence is arguable and raises a triable issue but does not have to show that his defence is ultimately likely to succeed.

I recently experienced a classic example. The plaintiff sued my client for a debt. My client's defence said that as the plaintiff had breached a collateral agreement with the defendant, it had been agreed between the parties that as compensation, the plaintiff would write off the debt. The plaintiff issued a summons for summary judgment. Before the Deputy District Judge, counsel for the plaintiff argued that the collateral agreement and compromise agreement pleaded in the defence were inadequately particularised therefore giving the plaintiff and the court no opportunity to assess the prospects of the defence succeeding.

I submitted that this was irrelevant as long as the defence raised a triable issue. The function of the summary judgment procedure is not to determine whether or not the defence is likely to succeed. The Deputy District Judge, however, found favour with counsel's submission and said that although she had been close to granting the plaintiff summary judgment, she had been persuaded at least to give my client leave to defend upon condition that he pay the sum claimed into court as security. She did not even address the issue of whether or not the defence raised a triable issue.

We appealed. The judge ruled that the defence clearly raised a triable issue, and that this was sufficient, the merits of the defence being a matter for the trial judge. Therefore, the matter plainly did not belong within the summary judgment procedure, which is not a forum for a trial by affidavits. The judge therefore not only removed the condition of the client being allowed to defend, but dismissed the plaintiff's summons and ordered that the plaintiff pay the costs of the appeal and of the hearing below.

It is hard to believe that two judges could have looked at this application and come to such opposite conclusions, bearing in mind that the summary judgment procedure is supposed to deal only with clear cut cases with no possible arguable defence. However, I think the explanation is that the judge recognised the extremely limited scope of the summary judgment procedure.

In another matter, we have recently been served with a summons for summary judgment with an estimated length of hearing of one day which must be evidence in itself of triable issues.

The courts are invariably overburdened and the temptation to get rid of cases summarily must be enormous, yet plaintiffs should be discouraged from applying for (and the courts from giving) summary judgment lightly because a judgment without trial is so draconian. A defendant should not be denied his democratic right to defend a claim (or to have conditions imposed upon it) unless his defence is a sham.