High Court Master claims judges over-looking ‘exacting’ test

The Master of the High Court has voiced concern the “exacting” test for summary or final judgment applications is “often just overlooked” by High Court judges, particularly in cases involving personal litigants.

Master Edmund Honohan urged that a proposed overhaul of superior courts rules and procedures, including rules governing final judgment applications, should involve the whole of society and not only judges “behind closed doors”.

The Master, who deals with various pre-trial applications, said there should be a “wide” conversation about what needs to be done.

His concern was new draft rules will arrive from “on high”, be presented as a “fair accompli” and the Minster for Justice will sign off on them “citing separation of powers as his opt-out from any criticism or debate”.

“The warning signs are there,” he said, urging the Irish Human Rights and Equality Commission, Irish Council for Civil Liberties, the Law Society and Bar Council to “watch this space”.

He suspected different groups in society have widely differing views on how our litigation processes operate in practice.

While the views of judges enjoy a presumption of fairness, it is “only an assumption” and any makeover of the rules should have the distinct character of “bottom up” reforms, not top down.

He made the comments in a written decision explaining why he was sending to plenary hearing a motion by Bank of Ireland Mortgage Bank for liberty to enter final judgment for €652,428 against a woman representing herself.

The woman, he said, had presented a picture of a wife who has been “kept in the dark” about the extent of her husband’s dealings with Bank of Ireland and BOIMB. She was also certain her husband’s status as a local solicitor was a factor in the bank’s “risky” dealings with him and in her being “targeted” when he was not.

She had also complained her husband’s dealings had jeopardised the family home where she lives with their two adult children, both of whom have disabilities, and referred to repossession proceedings.

She is particularly agitated her signature had allegedly been forged and allegedly fraudulently witnessed, the Master added.

He said her affidavits - sworn statements - bear all the hallmarks of a lay litigant’s difficulties and included obvious errors which illustrated the limitations of granting summary judgment on foot of an affidavit.

Asking whether lay litigants should be bound by the limitations their lack of knowledge of the law imposes, he said a “few pointed questions” from a judge might produce missing pieces of a legally coherent jigsaw, a defence counter-claim, but such questions could only be asked at a plenary hearing.

It is time for the courts to recognise that motions for final judgment should be adjourned for plenary hearing on the basis a defendant “ought to be permitted to defend” and this is such a case, he said. He was not prepared to risk a breach of the right to a fair trial under Article 6 of the ECHR by refusing a plenary hearing in this case.

Earlier in his decision, he said, while the Supreme Court has set an “exacting standard” signalling summary judgment should only be granted there it is “very clear” a defendant has no defence, that test “is often just overlooked in the High Court.

There was a “very troubling box-ticking exercise” and affidavits are “on the way out” when judges summarily dismiss their contents as “not credible”, he said.

It would “be unfortunate if a tendency to prejudge a full trial on the basis of witnesses credibility on paper were to take centre stage”, he said. “We simply cannot have creditors witnesses presumed to be truthful and debtors disbelieved, the oath notwithstanding.”

Credibility is not the test and the Supreme Court has said factual assertions that are supported by “any realistic suggestion” evidence might be available may be accepted as the basis for an arguable defence warranting a full trial.

Judges weighing potential prejudice arising from the grant or refusal of an adjournment do not have an unfettered discretion and should ask themselves how the European Court of Human Rights might view their decision.

Once there is a dispute concerning an application for judgment, a plaintiff cannot demand "fast track judgment" and the existing summary judgment procedure under order 38 of the Rules of the Superior Courts is in breach of Article 6 of the ECHR, he said.

The summary fast-track procedure should be scrapped and affidavit-led adjudication made subject to “firm” rules, he said. The procedural model for summary judgment applications here is different to models elsewhere, he also noted.