[2017 574 S.]
DECISION of the MASTER of the HIGH COURT, 14th day of May, 2019
1. On all sides we hear calls for “conversations” on the issues of the day. It’s time we had a conversation about the proposed makeover of the litigation procedures prescribed by the Rules of the Superior Courts.
2. You cannot cure a problem without first identifying the problem. We have had little if any debate on what needs to be made over and why. What’s wrong with the present set of rules? Without analysis, the suspicion is that the project is some sort of legacy project. Worse, without analysing the problem we cannot judge whether the proposed changes resolve it.
3. From where I sit, I can see problems with particular aspects of the Rules currently in operation, and this decision is my contribution to the “conversation”.
4. Firstly, I suspect that different groups in society have widely differing views on how our litigation processes operate in practice. Are their views to be factored into, for example, a reappraisal of what constitutes “due process”? The views of the judiciary on this point may not be shared by the lay litigant. Neither should be regarded as “true North” and, although the view of the college of judges enjoys a presumption of fairness, it is only a presumption. Deference should not be obsequious.
5. The entitlement of the citizen to justice is a constitutional right, and justice is delivered when process is fair. The principle that justice must be seen to be done unambiguously points to the man on the Clapham omnibus as the final judge of fairness, and to this end any makeover of the rules should have the distinct character of bottom up reforms, and not top down. It is the bus passenger’s informed impression that must be the litmus test.
Adjournments and the balance of prejudice test
6. The second named defendant, Heather Cody, who is the one remaining respondent in the plaintiff’s motion for liberty to enter final judgment for the sum of €652,428.36, having filed four affidavits prior to the most recent listing of the motion now seeks to introduce an unfiled affidavit. It is sworn, but is unfortunately loose leafed and somewhat imprecise. It certainly does not meet the Rules’ stipulations as to form. Mrs. C sought a short adjournment to enable her to tidy it up.
7. Much though practitioners like to cite it, there is more to this than the defendant being “in the hands of the court”. Adjournment applications are assessed using a balance of prejudice test, thus, will the defendant be hampered in her defence of the case? How so? And, as against that, might the plaintiff be in a position to point to a material prejudice if an adjournment is granted (apart from the obvious prejudice of having to deal with the further affidavit from the second defendant).
8. It may seem pedantic, but the judge weighing each parties’ prejudice does not enjoy an unfettered discretion. He or she must ask himself how might the European Court of Human Rights view his decision. Ultimately, it is to the convention and case law of that Superior “Court” that one must turn for guidance. Get it wrong, and Ireland could be in the dock in Strasbourg.
9. To its credit, the plaintiff in this instance did not strenuously object to the adjournment application. Often plaintiffs in motions for summary judgment (such as this) argue that they have a due process “entitlement” to expedition given that they have opted to use the fast track Summary Summons Procedure. This is to misunderstand the Summary Summons option as creating an entitlement, in law, to fast track expedition. The option is additional to, and not a substitute for the normal plenary summons procedure. The plaintiff’s Article 6 entitlement is fully satisfied by use of the slow track plenary option. He may opt to try the fast track, but he has no complaints if it doesn’t work out and the case reverts to the slow track. After all, the summary disposal of cases is designed to shift off the Courts lists cases which are effectively undisputed. Once a dispute is apparent, the plaintiff cannot demand fast track judgment.
10. The 1906 edition of Odgers puts it this way:
“It is only when his writ is specially indorsed that a plaintiff can ask for summary judgment. And there are many cases in which he should not ask for it, although his writ is specially indorsed …… If he applies for summary judgment where there is an obvious defence to the action, his summons will be dismissed with costs”.
Believe it or not, Odger’s book was dealing with Rules of Court which had been applied in Ireland since 1878 and which, largely intact and mostly verbatim, still apply in 2019.
A fair hearing
11. Certainty in the law is devoutly to be wished. Access to justice, and the opportunity to effectively participate in the litigation with equality of arms is the entitlement of litigants under the Human Rights Convention, under the Constitution (sub. nom. “natural justice”) and now (in EU matters) by Art. 47 of the EU Charter of Fundamental Rights.
12. Sadly, the confusion caused by multiplicity of sources of law is close to thwarting that right. How many litigants in person understand that the Rules of Court are largely directory, and not as mandatory as they first appear. Many such litigants lose themselves in a dispiriting effort to understand and comply. And it doesn’t end there. Difficult and all though it may be to keep on top of all the various documents that have been prepared, by both parties, there is in such documents often no clue as to the applicable law, and certainly no useful pointers as to the case-law precedents which inform the court’s understanding and application of such law. Consequently, the litigant in person is often blindsided by the other side opening to the Court the text of written judgments in other cases in which relevant legal principles are explained. These are sometimes binding, and sometimes not.
13. Often judges go to great pains to explain the legal basis of their decisions but, by then, it is usually too late for the litigant in person to reframe his arguments with the benefit of a better grasp of the applicable law. It is the ultimate irony for those who go to Strasbourg to find that;
“the Court’s task with regard to a complaint under Article 6 is to examine whether the proceedings, taken as a whole, were fair and complied with the specified safeguards stipulated by the Convention. Unlike a national court of appeal, it is not concerned with the questions whether the conviction was safe, the sentence appropriate, the award of damages in accordance with national law, and so on. And a finding by the Court that an applicant’s trial fell short of the standards of Article 6 does not have the effect of quashing the conviction or overturning the judgment, as the case may be”. (Jacobs & White).
14. In other words, the ECtHR’s sole concern is the fairness of the proceedings in the court at first instance (and on appeal, if any).
15. In that regard, the domestic Court’s decision to enforce compliance or waive non-compliance with the (merely directory) Rules of Court has to be rated on the fairness scale. An application to adjourn to allow an affidavit, sworn but non-compliant in form, to be filed? No hesitation. An application to adjourn to allow a supplemental affidavit to be prepared, sworn and filed? In most instances, not a problem.
16. But in the case of motions for liberty to enter final (summary) judgment in a disputed case, the question must be; what is the nature of the process, and whether the applicant can make a sound case that a refusal to adjourn would entail prejudice. It must be born in mind that the outcome of such a motion is not to be determined on the balance of probability. It is not a trial. The defendant’s evidence must be taken at its “highest water mark”. It is to be accepted as true for the limited purpose of this application for summary judgment, and no supplemental affidavit disputing his evidence ought to be admitted or considered (on the scales) unless the evidence thereby adduced incontrovertibly disproves the defendant’s alleged defence.
The fast track summary judgment
17. As will be appreciated, the procedure by motion on affidavit is a short cut to judgment. It is a dry run, designed to dispose of undefended cases “summarily” without a full “plenary” hearing with prior discovery of documents and witness evidence from the witness box. “A cause of action which the defendant cannot answer”, Odgers describes it.
18. Stepping back from the provisions of Order 37, one should appreciate that the fast track indeed serves the interests of justice when there is no arguable defence. Or, flipping that coin, that the employment of the fast track procedure is for the purpose of achieving justice. The overriding objective is a just outcome.
19. We have over the years been trying to rationalise the court’s approach on such a motion by reference to various early and more recent judgments, but it is salutary to again return to the exact words of Order 37 as setting the parameters of the exercise. See Rule 3 “The defendant may show cause against such motion”, and rule 9 “if…the defendant has a good defence to or (my emphasis) ought to be permitted to defend”.
These phrases are facilitative of justice. And the case law of over one hundred years confirms that the courts will seek to satisfy themselves that no injustice will be caused. They will read the defendant’s materials “anxiously” bearing always in mind that to move the case off the fast track and on to the standard track is, by no measure, an injustice to a plaintiff with a winning case.
20. I do not think it can be said that these standards have changed over time. Indeed, any tendency to deal with a summary judgement motion on any less sympathetic basis would call into question an issue to be determined by the ECtHR namely, whether an O.37 motion, without discovery or cross-examination, can ever be regarded as a final fair hearing when a defendant asserts, on oath, facts of his own knowledge (or even the probable existence of other best evidence, not then available), which could be evidence of a bona fide defence. And if an O.37 motion is not a trial, use of such motions cannot be a justifiable derogation from a litigant’s A6 rights merely on the thin basis of a proportionate response to the problem of long courtroom waiting lists.
21. Any temptation to cut due process corners should be resisted. The present summary judgment procedure O.37 is prima facie in breach of Article 6: It is not due process. Any fast track affidavit based procedure is counter-intuitive. Fortunately, the Supreme Court has clearly signalled that summary judgement should only be granted “where it is very clear that the defendant has no defence”. Harrisrange, McKechnie [2003] 4 IR1. It is an exacting standard.
22. Unfortunately, the test is often just overlooked in the High Court. Exacting standards do not bind judges, it seems. The box ticking exercise we sometimes see instead is particularly troubling when the defendant is a litigant in person. Are affidavits on the way out? They are, when judges summarily dismiss the content as “not credible”. The Supreme Court points out that credibility is not the test, but (of course) a mere assertion of facts unsupported by evidence – a “bare” assertion – may not provide an “arguable” defence, and asserted facts which are “in themselves contradictory and inconsistent with uncontested documentation” will fare little better.
23. But in the same judgement, IBRC v McCaughney [2014] IR 749, Clarke J. writes that factual assertions that are supported by “any realistic suggestion (my emphasis) that evidence might be available” may be accepted as the basis of an arguable defence warranting a full trial. The particular situation of a litigant in person presenting an unprofessional affidavit (or no affidavit at all, just presenting himself in court expecting to be able to tell his story), needs to be considered under this heading. Here we see starkly the limitations of the affidavit as representing the complete story. (Even the plaintiff’s affidavit is usually largely hearsay, a prima facie case.) There are myriad reasons why a litigant in person may sell himself short in a roughly drafted affidavit and, in the absence of legal aid, it surely must be the law that anything he says in open court, even if not under oath, must feed into a decision to, at the very least, postpone the summary judgment until a proper affidavit be filed. Or can the judge just ignore what is said in court?
24. Surely there is no distinction between the test to be applied under O.28 to a so-called “vexatious” pleading (unsworn) and what to do with a defendant in open court stating (unsworn) an allegation for which there is “a realistic suggestion that evidence might be available”? The test for vexatious pleadings is clear. In Millstream Recycling v Tierney[2010] IEHC 55 Charlton J. confirmed that a case should not be struck out “unless it can be demonstrated that what the plaintiff asserts is utterly undermined by the known and readily ascertainable circumstances of the claim, usually in written documentary form”. Costello J. in D.K. v. King [1994] IR 166 went further, saying the court “should confine itself to considering whether the issues (emphasis added) raised were frivolous or obviously unsustainable”. 
The agenda for change
25. Actually, we could scrap the summary fast track altogether. No law or principle requires us to have one. And clearly if summary, affidavit-led adjudication proves to be problematical in the sense above described we need to fix firm rules for its use. Obviously, it would be unfortunate if a tendency to prejudge a full trial on the basis of credibility of witnesses on paper were to take centre stage. We simply cannot have creditors’ witnesses presumed to be truthful and debtors disbelieved, the oath notwithstanding. The importance of oral evidence and the central “truth eliciting” rule of cross-examination were confirmed by the Supreme Court in Boliden Tara Mines v. Cosgrave & ors [2010] IESC 62 where Hardiman J. declared that without cross-examination, (my emphasis),
“It cannot be too strongly emphasised that… in a case tried on affidavit it is not otherwise possible to choose between two conflicting versions of facts which may have been deposed to”.
25. And I am reminded also that the Supreme Court confirmed in Maloney v. Jurys [unreported 12/11/99] that the judge may not accept documentary evidence where it is contradicted by oral testimony:-
“The learned trial judge (Kelly J.) referred to two hospital notes which he assumed tended to undermine a portion of the plaintiff’s evidence. The trouble is that neither note is evidence. If put to the plaintiff, the cross-examiner would have been bound by her answer.”
26. In an article in the Bar Review, November 2016, entitled “Fight for cross-examination”. Paul Gardiner SC argues that the new “conduct of trial rules” have “the capacity to emasculate the right to cross examine”. He considers that the new rules “involve the supplementing of the role of counsel and…placing litigants’ advisers in an invidious position”. He asks“How is counsel to react if the judge says he or she does not require some of the plaintiff’s witnesses”.He asks “why is the judge given this power at all?”
27. Clearly, we should proceed with caution if our rules and procedures are being redesigned. The procedural model for summary judgment applications we use here is different to models elsewhere. No one design is designated “due process” by the ECtHR. In the USA, rule 56 of the Federal Rules of Civil Procedure provides for summary judgment “where there is no genuine issue as to any material fact” and this procedure is available for all types of claim, not just liquidated claims etc. In the UK, until relatively recently, the relevant procedures mirrored ours except that the relevant rule specified that summary judgment be refused where “there is an issue or dispute which ought to be tried or that there ought for some other reason to be a trial”.
28. Following the overhaul of procedures in the UK, the new rules extend the summary judgment application option to all types of claim and indeed, as in the US, allows not just for plaintiffs’ applications but also for defendants’ applying to dismiss summarily. The new rule also introduced, for the first time, the tighter test of “a real prospect of success”, and the new rule reads as follows:-
“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other reason why the case or issue should be disposed of at a trial.”
29. The use of this new formation in the UK rules marks a change from the yardstick of “an issue to be tried” (a “triable issue”, as they say in the US), and it is. But the rationale for the change is not the introduction of some new concept of justice, it is that the concept of justice is to include some proportionality, weighing the hitherto absolute entitlement to a hearing against the costs and burden of litigation on society. Lord Woolf, the author of the new rules, introduced what he called the “overriding objective”, namely, the recognition of the public interest in expedition and value for the public purse in the administration of justice. One can readily appreciate that more extensive use of the summary judgment procedure could filter out all sorts of cases which could be fairly assessed on the basis of affidavits, or affidavits plus discovery of documents, or affidavits plus discovery plus oral evidence where cross-examination is thought to be necessary for justice.
30. An early example of the new rule in operation is Swain v. Hillman [2001] 1 AER (CA) 91 “If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable” Judge LJ, and “The judge was entitled to find that there was evidence, which was not intrinsically incredible that the plank fell on the plaintiff”. Pill L.J. And what did Lord Woolf himself say? He ruled (p. 95) that a motion for summary judgment to be adjudicated on the basis of a real prospect of success “does not involve the judge conducting a mini-trial”.
31. All in all, this short tour of procedural rules of various jurisdictions serves only to confirm that, wherever one looks, the interests of justice will open the door to a plenary hearing when the court judges it to be necessary. Nowhere is to be found a restrictive reading of the rules of court as if set in stone.
32. In the new UK rules, there is still an explicit basis for transfer to plenary hearing even when there is no arguable defence. The listing of an “other reason why the case or issue should be disposed of at a trial” is a reworking of the previous formula’s reference to when “there ought for some other reason to be a trial”, and this is on all fours with the Irish rules’ stipulation that summary judgment can be refused “when the defendant ought to be permitted to defend” even though he has no good defence (O. 37, r. 9). [Just for the record, the UK’s new rule was amended in 2000 to add the word “compelling” to the formula, so that it now reads “other compelling reason why the case or issue should be disposed of at a trial”.]
33. There is some UK case-law guidance on the point, the most often cited being Miles v. Bull [1969] 1 QB. Megarry J. asked:-
“Is this such a case. I think it is. In my judgment “there ought for some other reason to be a trial” and that reason is that of justice.”
34. In Bank fur Gemeinwirtschaft v. City of London Garages [1971] 1 AER, 541 at 548 Lloyd L.J., having cited Miles v. Bull, added:-
“It is not difficult to think of other circumstances where it might be reasonable to give leave to defend although no defence was shown, e.g. if the defendant was unable to get in touch with some material witness who might be able to provide him with material for a defence; or if the claim were of a highly complicated or technical nature which could only properly be understood if oral evidence were given; or if the plaintiff’s case tended to show that he had acted harshly and unconscionably and it was thought desirable that if he was to get judgment at all it should be in the full light of publicity.”
35. The judgment in Miles v. Bull also refers to Daimler v. Continental Tyre and Rubber Co. [1916] 2 AC 307 HL deciding that if the circumstances of the case are “such as require close investigation”this will “preclude the propriety of giving leave to sign judgment”.
36. Megarry J. summarised the facts in Miles v. Bullas follows:-
“Until the middle of June, 1965, the defendant, Mrs. Blanche Bull, was cohabiting with her husband in the premises. The marriage was not happy, and her husband then left the premises… in June, 1967, she obtained legal aid and petitioned for judicial separation… hard things were said on each side… On January 23, 1968, a contract for the sale of the premises for £10,000 was entered into by the husband… the plaintiff was the purchaser. Completion of the purchase took place on the same day as the date of the contract, namely, January 23, 1968… Three days after completion, the plaintiff’s solicitors wrote to the defendant inquiring when she would vacate the premises and offering her a reasonable time in which to do so. On March 19, the plaintiff issued the writ, claiming possession against the defendant. On August 12, Master Jacob gave the defendant unconditional leave to defend. Against that decision, the plaintiff now appeals.”
37. Megarry J. then, at page 266, asked himself whether this was a case which required close examination… precluding summary judgment.
“By carrying through a transaction at unusual speed the defendant’s husband is seeking to enable the plaintiff to do what he himself cannot do, namely, evict the defendant from her home. The husband has whatever rights the law gives him, and so has the plaintiff; but in the circumstances of the case I do not think that it would be just if the plaintiff were able to enforce the rights which he claims without being put to strict proof that they do enable him to evict the defendant. I was told that, in granting leave to defend, Master Jacob said that the case was ‘too near the bone for Order 14’ that, if I may say so, seems to me to summarise admirably what I have tried to express in greater detail. Order 14 is for the plain and straightforward, not for the devious and crafty. There is here a case for investigation, and so not for summary decision.”
38. Then Megarry J. referred to Bramwell J.’s observation in Harrison v Bottenheim(1878) 26 W.R. 362, 363 that “if a defendant has shown enough to entitle him to interrogate the plaintiff the case should not be pursued without his being allowed to defend” and offered this analysis of the instant case:
“…with the relevant facts peculiarly within the knowledge of the husband and the plaintiff, it seems to me that there is at least a strong prima facie case for the interrogatories, discovery and cross-examination which will be available if the case goes to trial, but which will be shut out if there is summary judgment”.
39. Mrs. Cody, the second named defendant is the only respondent to this summary judgment motion. She has filed five sworn affidavits dated respectively 23rd July, 2018; 26th October, 2018; 28th November, 2018; 11th January, 2019; and 4thApril, 2019.
40. The picture she presents is of a wife who has been kept in the dark about the extent of her husband’s dealings with Bank of Ireland (the “bank”) and with the plaintiff. She paints a picture of what to her appears to have been a pattern of her husband’s dealings amounting almost to a joint venture with the bank, and although her name appears on various accounts, she had no prior knowledge of same. She is certain that her husband’s status as a local solicitor was a factor in the bank’s risky dealings with him and is now a factor in her being targeted when he is not. She complains that her husband’s dealings have been “to the detriment of the family home” and I take this to mean that he has over extended himself and jeopardised the family’s ability to meet the mortgage payments as they fall due. She refers to “repossession” proceedings in the local Circuit Court and is critical of aspects of her treatment there by the County Registrar, the judge, and the plaintiff’s solicitor when she is defending the home without the assistance, or even presence, of her husband in court. Viewed collectively, she sees evidence of a joint campaign by the plaintiff and her husband to cause her to lose the home in which she resides with an autistic, visually impaired, 25-year old and a sibling of 23 years with ADHD and Asperger’s. She accuses the bank and the plaintiff of collusion with her husband and fraud. She is particularly agitated that her signature has been forged and (she alleges) fraudulently witnessed. She complains that the plaintiff has not furnished her with requested documents and seeks discovery from the bank and other non-parties.
41. These affidavits bear all the hallmarks of a lay litigant’s difficulties, including obvious errors such as in par 1 of the final affidavit where she refers to “systemic borrowing… over a twenty-year period from 1990 until 2010 often with (sic) my knowledge or consent to the determent (sic) of the family home”. She must have meant to type “without” instead of “with”.
42. In a way, that one small example illustrates the limitations of summary adjudication on affidavit. It is an own goal. There are many other shortcomings, in particular in her failure, as a defendant, to discern and pinpoint key relevant facts which would be considered material to a formal defence such as, for example, non est factum, or the particularity with which a detriment must be evidenced if a fraud or negligent misrepresentation claim is to be maintained. Lay litigants use a scattergun approach, and who can blame them. But are they to be bound by the limitations which their lack of knowledge of the law impose? A few pointed questions from the bench might produce the “missing” pieces of a legally coherent jigsaw, a defence counterclaim, a Lloyd’s Bank v. Bundy case? Those questions can only be asked at a plenary trial. Without being asked and allowed to answer, she cannot be considered to be participating “effectively”.
43. Mrs. Bull did not have an “arguable defence” at the summary judgment application stage, but the UK Court judged that justice required that the plaintiff who had questionable dealings with her husband, should be required to formally prove his case at a trial. The matter required a fuller investigation above and beyond the filing of affidavits.
44. In Mrs. Cody’s case, the plaintiff has had dealings with her husband, her husband’s bank (the “bank”) and her husband’s family solicitors firm of which he was partner. The dealings may or may not be above-board. All she knows is that there is much that she has only learnt of after these proceedings commenced and she will not let these matters rest without getting answers.
45. Time, then, for the court to recognise that motions for summary judgement are not meant to be “adjourned for plenary hearing”, only when the defendant satisfies the court that he has an arguable defence but that when, as in this case, even without an arguable defence at this stage, there are cases where a defendant (in the words of o.38, r.9) “ought to be permitted to defend”. This is one of them.
46. As I am not prepared to risk a breach of Article 6, I am adjourning for plenary hearing. I am required to do so by s. 3 of the 2003 Act, the relevant RSC notwithstanding.
Broader concerns
47. What a great illustration this case gives of the perils of deciding cases, finally, on affidavit. Adapting the UK rule, the “other compelling reason” might be the unfairness of an affidavit based adjudication when one party is not “equal in arms”. Affidavits only tell part of the story. The debate about reforming the procedure and Rules of the Superior Courts – the “conversation” I referred to above – has only just begun. Proposals to apply the Commercial Court rules more generally just will not do.
48. I fear that we will be presented in due course with new draft rules arriving from on high on two tablets of stone. A fait accompli. No debate. The minister will sign off on them citing separation of powers as his opt-out from any criticism or debate.
49. The warning signs are there. I call on the Irish Human Rights and Equality Commission and the Irish Council for Civil Liberties, the Law Society and the Bar to watch this space. Respect for, and deference to the bench has its place but the bench cannot expect subservience. Designing the administration of justice is a project for the whole of society. It cannot be conducted behind closed doors.