7. If the defendant has filed a defence, but it does not contain any reasonable points, can the plaintiff apply for a "fast judgment" without going through a trial?
What is summary judgment?
In such a case, the plaintiff can apply to the court for a summary judgment (i.e. a final judgment obtained summarily without a full trial) against the defendant, on the grounds that the defendant has no defence to the claim.
In this context, “no defence” generally means the defence pleaded by the defendant is not supported by any reasonable grounds, concrete evidence or arguable points.
If a defence is “frivolous and practically moonshine”, or if assertions are inherently implausible or contradicted by contemporaneous documents, summary judgment is likely to be granted.
Purpose of summary judgment
The purpose of summary judgment is to avoid the delay and expense of a full trial where there is no genuine issue to be tried. In other words, the judgment is granted by the court without hearing the oral evidence from both parties and their witnesses in a trial.
Actions not eligible for summary judgment
The following types of actions are not eligible for summary judgment:
- jury trial claims, including libel, slander, malicious prosecution, false imprisonment, and seduction;
- Admiralty actions in rem;
- cases with their own special procedures, such as actions for the specific performance or rescission of certain property agreements under Order 86 of the Rules of the High Court (Cap. 4A) (“RHC”) or the Rules of the District Court (Cap. 336H) (“RDC”) and mortgage actions under Order 88 of the RHC or RDC; and
- claims against the Government.
Previously, actions based on allegations of fraud were ineligible for summary judgment. However, this “fraud exception” was abolished on December 1, 2021, and is now only relevant for applications pending before that date.
When summary judgment should not be sought
Moreover, an application for summary judgment should not be made when the case involves serious factual disputes or complex legal issues. This is because, to defeat a summary judgment application, the defendant does not have to show that he has a good defence but only that he has an arguable defence.
The court’s task is not to resolve issues of fact or decide if the defendant’s assertions are true, but to ask whether they are reasonably capable of belief or “believable” when viewed in the context of the undisputed background. Also, if the case requires lengthy argument or mature consideration in an evolving area of law, it should proceed to trial.
How the defendant can resist summary judgment
To defeat a summary judgment application, the defendant does not have to establish a complete defence, prove that their defence will ultimately succeed at trial, or convince the court that their version of events is the absolute truth. He needs only satisfy the court that there is a triable issue (i.e. a fair probability or reasonable grounds for a bona fide defence), or that there ought “for some other reason” to be a trial. For information about “some other reason for trial”, please refer to “Can the defendant still resist summary judgment if he does not have all my evidence ready yet, or need time to locate a key witness?”.
Leave to defend
If the defendant’s assertions are believable, he will have leave (permission) to defend, meaning permission to continue defending the action. The court will also permit the defendant to defend if the judge thinks that there should be a trial for some other reason (e.g. the defendant is unable to get in touch with an important witness who might be able to provide him with material for a defence).
However, if the defence appears shadowy, far-fetched, or suspicious, the court may grant conditional leave to defend. This means the defendant may be allowed to defend the action only if certain conditions are met, such as paying the whole or part of the claim into court or providing other security. If the defendant fails to comply with those conditions, final judgment may be entered in favour of the plaintiff.
Requirements before applying
Before applying for summary judgment, certain requirements must be satisfied. In general:
- the action must have been begun by writ;
- the Statement of Claim must have been served on the defendant; and
- the defendant must have given notice of intention to defend.
How and when to apply
An application for summary judgment is made by summons and must be supported by an affidavit/affirmation.
A summary judgment application is usually made before the defendant files a defence. However, the plaintiff may still apply after a defence has been filed, provided the plaintiff can swear to a belief that the defendant has no valid defence to the action.
For further information about the summary judgment procedure, please refer to Order 14 of the RHC or RDC.
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