2. If the plaintiff applied for summary judgment knowing the defendant had an arguable defence, what remedies or cost orders can the defendant seek?
Under Order 14, rule 7(1) of the Rules of the High Court (Cap. 4A) or the Rules of the District Court (Cap. 336H), if the plaintiff takes out a summary judgment application knowing that the defendant relies on a contention that entitles him to unconditional leave to defend, the court may dismiss the application outright.
If the application is dismissed under Order 14, rule 7(1), the defendant can seek the following remedies and cost orders:
- The court has express power to order the plaintiff to pay the defendant legal costs forthwith, rather than waiting for the outcome of the entire trial.
- In cases where the plaintiff's conduct was particularly unreasonable or reckless (e.g. insisting on continuing the summons after receiving your affidavit showing triable issues), the court may penalize the plaintiff by awarding costs on a higher indemnity basis.
- If the plaintiff did not know of the defendant’s defence before issuing the summons, but unreasonably persisted after the defendant’s affidavit/affirmation in opposition disclosed a clear defence, the court can order the plaintiff to pay all legal costs incurred from the moment your defence was revealed.
- Even if the plaintiff chooses to withdraw or discontinue the summary judgment application after reading the defendant’s evidence, the defendant can still apply for an order that the plaintiff pay the defendant’s costs incurred after the disclosure of the defendant’s defence.
Furthermore, if the plaintiff applied for summary judgment improperly as a “fishing expedition” merely to compel the defendant to disclose his evidence on oath, it constitutes an abuse of process and will be dismissed with costs.
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