Is trend towards summary High Court hearings in the interests of justice?
No witnesses called in an increasing number of cases
Scales of justice: the layman’s participation in legal proceedings must include the opportunity to get into the witness box and tell his story and dealing with cases summarily denies this right
Not many readers will know that a High Court case will often consist only of the Judge reading the sworn written evidence (affidavits) of both sides and judging the case on that basis alone. Significant portions of the written evidence may be drawn to his attention by the lawyers, but no witnesses will be questioned in the witness box. The number of cases being dealt with summarily is on the rise. Should we be concerned?
Some types of case lend themselves to this summary procedure. A special summons may be used where the issue is one of documentary construction or as to what is the appropriate legal principle applying to an agreed set of facts. Other cases, where the area of disputed fact is quite net, can be started by special summons and fast- tracked to an early hearing of a motion for summary judgment.
The court must summarily decide whether the defendant’s affidavit evidence is of such a nature that justice requires a full oral hearing with witnesses in the box and cross-examination. But even more complex cases, with clear factual issues, may be dealt with summarily if a plaintiff chooses to apply to the court to summarily strike out the case in the interests of justice.
The rules of court refer to circumstances in which the court may so order, in the exercise of what is known as the court’s inherent jurisdiction. These include cases where the claim is vexatious, frivolous, an abuse of process or where the case as pleaded is unstateable and bound to fail.
When I started practice as a barrister, such applications were extremely rare. Then in 1981, Mr Justice Declan Costello read a plaintiff’s affidavit evidence and summarily dismissed the case. Describing this in 1992 as “a healthy development not to be disowned for its novelty”, the Supreme Court cautioned that “there may be a certain sense of disquiet at its rigour”.
Mr Justice Peter Kelly emphasised twice, in a judgment in 1996, that the test is whether the plaintiff’s case must fail even if everything he says is true.
However, sad to report, the word “unsustainable” has now entered the lexicon, and bids fair to become the yardstick of judicial choice for these “novel” applications. The test is no longer black and white.
“Unsustainable” imports a review of the law and, in addition, a pre-judgment of the evidential weight and credibility of the content of the affidavit. An assessment of credibility has contaminated the Costello-Kelly test.
We are in danger of developing bad habits. Practitioners are reporting to me that defendants are being denied leave to defend even though the Supreme Court has ruled that this should only occur when it is very (the Supreme Court’s emphasis) clear that he has no defence, not even one which is only just arguable.
Plaintiffs are having cases dismissed because the court decides it doesn’t think much of their cases as pleaded, or of their evidence on affidavit, even though the affidavit is sworn testimony. Note that the Commercial Court has managed to achieve expedition without sacrificing due process. It uses case management to fast-track the preliminary stages, but then almost always directs a full hearing of witnesses before reaching its decision.