THE MASTER of the High Court has attacked the fairness of “fast-track” court procedures allowing banks and other creditors to get final judgment orders without a full hearing against debtors unable to pay lawyers and with insufficient legal knowledge to mount effective defences.
Edmund Honohan said he believed the procedures breach the right to fair trial provisions of the European Convention on Human Rights Act 2003. He also noted many applications for final judgment are granted on the “most unsafe basis” of sworn evidence from solicitors for creditors to the effect a defendant has no defence.
Of all those who swear affidavits, solicitors were the group “most frequently found to have only a nodding acquaintance with the truth”, he said. Solicitors’ sworn statements were “not generally reliable”, many would swear in a formulaic way without double-checking what the true position was and some had “debased” the concept of the affidavit and oath.
In his experience, judges could also not rely on plaintiffs’ barristers to inform their assessment of the strength and weaknesses of defendants’ cases.
Only an evidentiary hearing would be fair and the High Court should assess all such cases even when defendants were ignorant of the relevant case law.
In a detailed judgment yesterday, Mr Honohan, who manages High Court cases, raised issues as to whether the test being applied by the courts in deciding whether to allow a person leave to defend an application for final judgment breaches the European Convention of Human Rights.
That test, dating from 1875, involves the court deciding whether it is “very clear” the defendant has no arguable case, but there should be a new test, derived from human rights principles, where the court must be satisfied the case can be fairly decided without an evidentiary hearing, he said.
The situation now is that, in an effort to provide for earlier “trial” dates for cases which are indefensible, the judges have created a fast-track procedure which jeopardises defendants’ rights to a fair hearing, he said.
“This is not a price worth paying just to achieve good productivity figures for the Courts Service.” Summary judgment is not a statutory right but a fast track at the discretion of the court, he said. A defendant’s right to a fair hearing was superior and “a trump card”.
As things stand, a defendant has “one chance” to make their case in a crowded court where they are perhaps among 100 different matters listed on a Monday morning, Mr Honohan outlined.
This was “a surreal world” where people representing themselves would probably be confused, unaware they should have a sworn affidavit outlining any defence and were effectively facing trial.
If a defendant is refused leave to defend, they have effectively lost the case with only a right of appeal to the Supreme Court, he added.
Mr Honohan referred to a number of cases before him, including one yet to be heard where a builder with debts of about €100,000 is being pursued by AIB under a guarantee involving a disputed signature entered into after the man’s brother took his own life and his child was seriously ill.
