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.
It appears that other High Court judges, looking over their shoulders at the achievements of the Commercial Court, may be subconsciously aiming to achieve the same expedition by dealing with cases summarily. It is difficult to see how this could be described as being in the interests of justice.
There will, of course, be cases where it will be argued that a long delay before trial is, itself, an injustice to a party who appears more than likely to succeed, but speeding up the procedure by this device is not the answer.
Now here’s another difficulty. A litigant without a lawyer may start out without any familiarity with affidavits. He will almost certainly make a mess of it. He will leave out chunks of relevant material because he expects to be giving evidence later.
Let’s face it: he is in a foreign country when the summary hearing occurs, but he does have rights under the Human Rights Convention. The leading textbook says: “It is not sufficient that the civil party is present in court. He or she must, in addition, be able effectively to participate in the proceedings.”
To my mind, the layman's participation must include the opportunity to get into the witness box and tell his story. Only then can justice be seen to have been done. And although a court has a strictly limited discretion during a full trial to permit any particular fact to be proved by affidavit, the Supreme Court ruled in 1998 that the court has no discretion where the matters are complex and the other party bona fide wishes to cross-examine the witnesses "to explore their competence and credibility".
This is, of course, the constitutional right to fair procedures, is it not?
Prompted by a documented complaint by myself, the Irish Human Rights Commission proposed rule changes to the courts rules committee two years ago, and threatened sanctions. Nothing has happened since, and the problem is getting worse.
In the 1992 Supreme Court judgment regarding the novel jurisprudence, Mr Justice Niall McCarthy suggested that no action should be dismissed summarily “if the statement of claim admits of an amendment which might, so to speak, save it”. This suggests that a court should, at the minimum, hear all of the plaintiff’s allegations even if they are not expressly pleaded or set out in his affidavit. Truth will out?
Building on that thought, the judge went on to comment that “experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings, and that often times the trial will disclose a different picture”. He warned that the court should be “slow to entertain an application” to strike out a case summarily.
Should we be concerned ? I think so.
Edmund Honohan SC is master of the High Court