What is a Summary Judgement?

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Introduction

For the past 20 years, I have made flying simple for the layman in my website at askcaptainlim.com and my books. Today, as I switch over to lawyering after more than 50 years in the skies, I will endeavor to do the same for law too.

I have recently completed an advocacy training course covering some very interesting topics. My Blog here will give me an opportunity to briefly discuss them as best as I can as a new comer.

Remember the recent news report about an ex politician wanting to strike out (a court ordering written materials to be deleted) the bankruptcy notice filed against him over his failure to pay income tax arrears to the Inland Revenue Board?  Well, this arose following a summary judgment entered against him at the High Court.

So, what is a summary judgement?

A summary judgement is a judgement made against a party without going through a full trial. This is to avoid unnecessary litigation, save cost and prevent delaying a judgement when the facts of liability are so obvious and clear.

In the case of UNP Plywood v HSBC, the Court of Appeal held that Summary Judgement procedure is a procedural device available for the prompt and expeditious disposition of an action by a plaintiff (person suing) or a counterclaim (suing back) by the defendant (person being sued) without a trial where there is no dispute as to fact and law

The Principle of Law behind Summary Judgement

A Legal practitioner will refer to Order 14 of the Rules of Court 2012 for the following rules:-

  1. O14 r1 – Application by the Plaintiff

Rule 1 – Plaintiff may apply to the court that the defendant has no defense. This rule excludes actions like libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage and an allegation of fraud.

  1. O14 r2 – Manner how rule be made

Rule 2 Application should be supported by affidavit (statement under oath) verifying the facts and that there is no defense to the claim

  1. O14 r3 – Judgement for Plaintiff

Rule 3 – The Plaintiff may claim that there ought not to be a trial

  1. 014 r4 – Leave (permission) to defend

Rule 4 – Defendant may oppose the judgement by affidavit to the satisfaction of the court

  1. 014 r5 – Counterclaim

Rule 5 – Defendant may serve a counterclaim on the Plaintiff. [Example – Bank sues a customer for unpaid debt. Customer counterclaims (sues back) bank for fraud in procuring (persuade someone to do something) the debt.]

  1. O14 r6 – Directions

Rule 6 – Court may give directions to Plaintiff or Defendant as to further conduct of the actions

  1. 014 r7 – Costs

Rule 7 – Court may dismiss the application with costs

  1. O14 r8 – Right to proceed

Rule 8 – Plaintiff or Defendant may proceed with their actions in the claims or counterclaims

  1. O14 r11 – Setting aside Summary Judgement

Rule 11 – Any judgement given against the Defendant who does not appear in the hearing may be set aside (to render another Court’s decision invalid) or varied as the Court thinks just.

What are the requirements to apply for Summary Judgement?

In the case of National Co for Foreign Trade v Kayu Raya, Seah FJ said the primary requirement are: –

  1. That the Defendant has entered an appearance (attended court)
  2. The Statement of Claim (a statement by the Plaintiff to the court containing allegations against the defendant and the relief sought) has been served
  3. The affidavit in support complies with r2, i.e. there is no dispute on fact and law. Other requirements include the defense is clearly unreasonable, there is no triable issue, the Plaintiff has a prima facie (at first sight) case and the cause of action (e.g. a breach of contract) is established.

How a Defendant can oppose a Summary Judgement?

  1. The Defendant must show why Summary Judgement should not be entered

In the case of Renofac Builder v Chase Perdana – the Court held that the defense must not be mere bare assertion. It must be viewed in perspective of whole scenario and be a bona fide (genuine, without intention to deceive) defense.

  1. That there is no statement of Claim or the Defendant has not entered appearance r.1(1)
  2. That the affidavit is defective r.2(1)
  3. That the Defendant raised a triable issue or some other reasons that there ought to be a trial r.3(1) as held in

Ng Yik Seng v Perwira Habib Bank  (there was a signature issue)

Concentrate Engineering v UMBC  (the signature was forged)

  1. That the Defendant raised a set off (to contra or a settlement of a mutual debt) which acts as a defense. See case of Shanghai Hall v Town House Hotel
  2. That the Defendant must show the case involve defamation, malicious prosecution or allegation of fraud.

Conclusion

If the Defendant can show the above conditions, he can apply to dismiss Plaintiff’s Summary Judgement.