When size really does not matter

The best way to decide whether a defence case is worthy of a trial is not by the thickness of the affidavit but by the quality of the points made, says Louis Doyle. Louis Doyle is a barrister at 10 Park Square in Leeds.

Russell Jones & Walker's Barry Samuels, in his viewpoint piece (The Lawyer 8 September), hit the nail right on the head when addressing the pitfalls in summary judgment applications.

But there was one point he raised on which we will never agree: How can there be any rational basis for saying that a heavyweight affidavit (by which I refer to its bulk), or a lengthy time estimate for the defendant, automatically indicate that an issue is triable, and that a defendant must be given leave to defend?

This argument is the same as saying the substance of a defendant's case depends on the amount of paper and ink used or the length of time it takes to present. If that is correct then a ready market exists of lawyers skilled in using 20 words instead of one, or for those capable of employing a 10-page skeleton on the simplest time summons.

But in reality, defendants are unlikely to do themselves any favours by drawing out a weak case, in the vain hope that pushing together a string of nebulous points will convince the judge their case has merit. This is, of course, assuming the judge pays attention to the real substance of the avalanche of detail with which he or she is faced.

Admittedly, cases will arise which require a lengthy time estimate, mainly because they involve complex evidence (which does not necessarily translate as bulky). Such cases may need hearings of more than half a day.

Even though the modern Queen's Bench Division is against prolonged summary judgment hearings, practice varies between district registries. While the listing of a matter for more than half a day often depends on a defendant conceding the point – or the judge making an order to that effect – such requirements are no longer imposed by the White Book.

Instead, the 1999 edition (para 14/1/2) provides that a respondent to a summons under Ord 14 or Ord 14A, who wishes to contend that such an application is an abuse, should ask the judge for an early appointment to determine such contention. This removes the earlier requirement for a pre-hearing order in the absence of the defendant's agreement.

But why worry about bulky evidence or time estimates? It is better to concentrate on often overlooked procedural aspects. These include:

Asking the court whether the defendant can establish a defence which is less than probable but more than shadowy. This is a low threshold but still requires the defendant to do nothing less than state clearly the nature of their defence. Where the defendant fails to do this, relying on half-baked points, the plaintiff will have grounds for saying there is no real question to be tried.

The judge must remain open to the possibility that the defence will prove hopeless at trial under the Jones v Stone [1894] test. A plaintiff may make an oral application to move immediately to an Ord 14A hearing on a point of law which may dispose of the defendant's case if the defendant resists the point.

The defendant's affidavit must explain in specific terms the nature of the defence and explain the facts and documents upon which it relies? If not, the plaintiff may allege that the defendant has failed to condescend upon particulars.

Hearsay is admissible in a defendant's affidavit but only if grounds or sources of information are disclosed. If not, it is inadmissible and supportive of nothing.

These are only a number of technical grounds of attack open to plaintiffs. There are far more available to defendants. Whatever a defendant tells you, size really does not matter.