Summary Summons, not the way forward!

summary judgment v plenary trial Judge Hardiman ruling

[2013 No. 9895]
DECISION of the MASTER of the HIGH COURT delivered the 9th day of May 2014
1. This decision concerns due process.
2. Specifically, it examines the defining lines of the parameters of such due process as ought to be extended to a defendant seeking “leave to defend” in the context of a plaintiff’s application for “liberty to enter final judgment” in proceedings commenced by summary summons.
3. It is of critical importance to bear in mind that the application (or “motion”) before the court will eventually be heard on affidavit only, and not on oral evidence, unless the court gives leave to cross-examine a deponent.
4. If the test is whether the defendant’s evidence on affidavit is “credible”, and if “credibility” no longer means “could it be true?” but rather “is it true?”, the defendant’s due process entitlements must be reconfigured accordingly.
Functions of Judge and Jury Distinguished
5. Suppose, for a moment, that legislation were enacted modifying the right to jury trial in civil actions for assault and defamation so as to provide that the jury could determine disputed factual issues by weighing the disputant’s respective affidavit evidence. In other words, that the jury members would be furnished with the affidavits and then asked to retire and consider their verdict.
6. Would such a process be “due” process? Would it ever pass scrutiny at the European Court of Human Rights when (apart altogether from the right to a “fair” hearing to include the rights to notice, to controvert the case alleged and to “effective” participation) Article 6 of the Convention speaks, inter alia, of a “public hearing” as one of the entitlements of the litigants?
7. The right to a hearing in public is, also guaranteed by our own Constitution and one can readily appreciate that transparency in the judicial process is a vital bulwark against tyranny. Would handing the jury the filed affidavits and asking them to consider same amount to a hearing in “public”? In this regard, the jury is not to be taken as a subset of the public such that their involvement in the judicial process is to be taken as a short form of transparency to the public at large.
8. Which brings me to the role of the judge. Before the right to jury trial in civil actions was largely abolished, the differentiation of the rules of judge and jury was well-known. Disputes on fact went to the jury while the judge ruled on legal issues. Judges knew the difference then and they know the difference now: in a civil action tried before a judge alone, he must act as would a jury in determining where truth lies and as a judge in applying the law.
9. That being so, would a fast track procedure by which a judge (acting as jury) could determine fact on the basis of affidavits not be open to the same criticism as outlined earlier? If the fast track procedure resulted in a final judgment, would such a process be unconstitutional and/or in breach of the Convention?
Summary Applications for Judgment
10. It is difficult, if not impossible, to characterise these summary judgment applications as other than final. As legal historians often discover, the origins of these fast track applications are to be found in a perceived commercial need to expedite claims by parties who are owed money: to help the haves pursue the have-nots (sometimes into Marshalsea). The origins were in the context of legislation on Bills of Exchange.
11. This legislation was extended to offer plaintiffs prompt access to the court to prevent defences, essentially vexations, from delaying the inevitable outcome. Lord Bramwell. in Beckingham v. Owen W.N. 1878, 215. stated his view that “the powers conferred by the order should be used sparingly and that the same rule ought to be applied as had been observed with respect to summary procedure in Bills of Exchange Act – viz that the defendant should not be debarred from his defence except where it was plainly vexatious and groundless”.
12. The early cases show that while a judge might readily appreciate and rule out a defence which was, as a matter of law, unstateable (known in those days as “on the merits”) he would always stop short of determining any factual issue which should be left to jury. It was recognised and accepted that a jury hearing was the due process when a disputed fact (which was material and/or relevant) had to be tried and this principle still applies when facts are disputed, even in the modern context of trial without jury.
13. Unfortunately, some judges fall into the error of confusing the appropriate due process requirements for hearings to determine legal issues (which may be on affidavit) with the due process parameters (even for a judge sitting alone) for adjudication of disputed fact. In a sort of way, since they know they would be acting as jury anyway in due course if they gave leave to defend, they can expedite the whole case by proceeding, at this interlocutory stage, to make determinations both as to law and fact, and to do so solely on affidavit evidence.
14. Just to put the procedure into context, look at the radically different approach of the US courts to summary judgment application. Under the US Federal Rules of Civil Procedure, the party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact, In Adickes v Kress & Co, 398 US 144, Mr. Justice Harlan of the US Supreme Court noted that the District Court “simply stated there was no evidence in the complaint or in the affidavits and other papers from which a reasonably minded person might draw an inference of conspiracy”, but ruled that summary judgment was in error because the moving party has the burden of showing the absence of a genuine issue as to any material fact (and for these purposes the material it lodged must be viewed in the light most favourable to the opposing party) and had, in this instance, ” not foreclosed the possibility that there was a policeman in the store who had conspired with the store employees”.
15. By contrast, the plaintiff’s proofs required for a summary judgment in Ireland are quite perfunctory. An affidavit by the plaintiff is required, verifying the cause of action. The wording required to verify can be quite formal and to the point (and corroborative documentary exhibits are not required) because the Court is relying on the plaintiff/deponent responsibly swearing as to the truth of his evidence. This is the origin of the oft-expressed view that prima facie evidence is all that is required. It also follows that hearsay evidence is not sufficient since there is no oath as to the truth thereof, but merely as to the deponent’s belief. See Lagos v Grunwaldt [1910] 1 K.B. 41.
16. Irish law on the point not only shifts the burden of proof to the defendant but even accepts plaintiff applications on prima facie evidence, including hearsay. One safeguard for the defendant is the requirement that the plaintiff swearing “positively” to the cause of action must also state his belief that there is no defence. I cannot see how a plaintiff who can offer, at best, only hearsay evidence, can competently state his belief in this regard.
17. There is often confusion between the prima facie and the hearsay rules. Yes to prima facie and No to hearsay can be confusing if one mistakenly thinks that hearsay evidence is ipso facto prima facie, It is not. The rules’ requirement of primary evidence is underlined by the reference to “swearing positively” (interestingly, the possibility of “some other person swearing positively” was an early statutory amendment to facilitate corporate plaintiffs – see Pathe Freres v United Electric Theatres [1914] 3 K.B. 1253.
18. In the 1879 Irish case of Kiely v Massey, Lord O’Hagan explained the rule’s requirement that a plaintiff verifying the claim should state his belief in the absence of any defence as follows:
“It appears to me that the exercise of the summary jurisdiction er are invited to apply ought to be strictly guarded and that there should not be any looseness of practice in a matter in which the formalities of procedure which would formerly have protected a person impleaded, the court is required summarily to make final adjudication, We have here a verification of the cause of action but we have no statement of the belief of the plaintiff…if we were to go into a consideration of the reason of the rule, it would not be difficult of discovery. There might be a verification as to the mere cause of action and quite enough behind to disentitle the plaintiff o recover.”
19. It is difficult to see how any plaintiff could secure summary judgment solely on the basis of hearsay evidence, but over the years, there has been some slippage in the rigour with which the court assesses plaintiffs’ affidavits: all of the focus is on the defendant’s answer. The question “should the defendant be given leave to defend?” is surely suggestive of a sort of institutional prejudice. As against that, hearsay evidence for the defendant “cannot be shut out”: Harrison v. Bottomheim [1878] 26 W.F. 362 C.A.
20. Harrison v. Bottomheim is also authority for the principle that “judgment ought not to be ordered if the defendant can show a prima facie defence or satisfy the judge that he ought to be allowed to interrogate the plaintiff”.
21. The case-law has consistently been to the effect that “merely to assert a given set of facts” may not be enough for a defendant seeking leave. In Wallingford v. Mutual Society (1880) 5 App Cas 685 HL (1880), Lord Blackburn offered this:
” I think that when the affidavits are bought forward to raise a defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear ‘I say I owe the man nothing’… It is difficult to define it, but you must give such an extent of definite facts…to satisfy the Judge that those are facts which make it reasonable that you should be allowed to raise that defence.”
22. In Harrisgrange Ltd v. Dunnes Stores [2003] 4 J.R. 1. McKechnie J. confirms that ” leave should not be granted where the only relevant averment is a mere assertion of a given situation”. The plaintiff must go further in proving facts than is apparently required of the plaintiff: the defendant must “support” his assertions.
23. The court’s discretion to give leave to defend is somewhat more generously scoped in the Rules of the English courts. Not only should leave be granted in “arguable defence” (otherwise a “triable issue”), but also where “there ought for some other reason to be a trial”. In Miles v. Bull [1968] 3 AER 632 (where the plaintiff bought the family home from the husband and the wife suspected the sale was a sham but had no evidence), Megarry J. quoted with approval the comments of Bramwell L.J in Harrison (q.v.):
“Though a man cannot show a defence, still, if he has shown enough to entitle him to interrogate the plaintiff, the case…should not be pursued without his being allowed to defend.”
Semble, if a defendant shows enough to entitle him to discover his opponent’s documents: if discovery is warranted, the summary judgment motion should be adjourned for plenary hearing.
24. Megarry J. commented that Master Jacob’s stated opinion of the case under appeal as “too near the bone for summary judgment” summarised the position “admirably” in that “with the relevant facts peculiarly within the knowledge of the husband and the plaintiff, it seems to me that there is a strong prima facie case for the interrogatories, discovery and cross-examination which will be available if the case goes to trial, but will be shut out if there is summary judgment”. The “some other reason”? “In my judgment, the reason is justice” Megarry J. 638.
Judging Affidavit Evidence of Disputed Facts
25. It is easy enough to grasp the essentials of the task of assessing (or “judging”) the evidence of a witness given viva voce and subjected to cross-examination. It is altogether a different exercise to attempt to find a rational basis for accepting or rejecting evidence deposed to on affidavit, The tests of coherence, logic, consistency and plausibility of the defendant’s affidavit evidence are not the same tests used to weigh the credibility of his oral testimony.
26. Instead of adjourning the trial of disputed (material) facts for a jury (or judge sitting as) hearing, the courts now often seek to determine the truth on the flawed assumption that the affidavits will be enough to go on for a just determination. The courts fast track to a final outcome, declining the defendant his fair hearing entitlements where:
(a) the defendant’s affidavit evidence is “incredible”. meaning (per McKechnie J. in Harrisgrange cited) failing to “satisfy the court that he has a fair or reasonable probability of having a real or bona fide defence” (this is the “Banque de Paris” test)
(b) Where the defendant has not credibly established that he has an arguable defence (per Denham J. in Danske Bank v. Durkan New Homes [2010] IESC 22).
27. As a term of art in this context, the concept of “credibility” is a late arrival, often misunderstood, and not uniformly accepted. The test is not whether the defendant’s evidence is true on the balance of probability (that is for another day). It is whether, accepting it as true, the defendant’s case is, nevertheless, inherently implausible. But if you are predisposed to the view (on the basis of the presumption omnia praesumuntur rite esse acta) that a bank’s paperwork is likely to be in order, you are ipso facto likely to view a defendant’s contrary version as improbable, but to reject it as “incredible” is an error in law at the motion stage. Thus, in Ray v. Barker (1879) Ex D 279, the defendant was given leave to defend even though Cotton L.J. concluded that it was ” pretty clear to my mind what the result will be “.
28. We are strangely addicted to adopting the reasoning of the English courts, sometimes verbatim. In First National Commercial Bank v. Anglin [1996] 1 I.R. 75,, Murphy J. ruled that the test to be applied was the UK Court of Appeal 1984 Banque de Paris test (Banque de Paris et des Pays-Bas (Suisse) S.A. v. de Naray [1984] 1 Lloyd’s Rep. 21) as formulated by Ackner L.J., namely, ” whether the defendant has satisfied the court that there was a fair or reasonable probability of the defendant having a real or bona fide defence”. Murphy J. then went on to quote Glidewell L.J in the 1993 National Westminster Bank v. Daniel [1993] 1 WLR 1453, stating that “the test posed by Lloyd L.J. in Standard Chartered Bank v. Yaacoub (Unreported, Court of Appeal (Civil Division) 3rd August 1990): ‘is what the defendant says credible?’ amounts to much the same thing (as I see it).” One must wonder, in passing, whether Ackner L.J. would agree: the credibility test maybe a sufficient but not a necessary condition for leave to defend.
29. In adopting Ackner L.J.’s test, Glidewell L.J. pointedly referred to Bingham L.J “putting the matter differently” in Bhogal v. Punjab National Bank [1988] 2 AER, 296, 303 as follows:
“The correctness of factual assertions such as these cannot be decided on an application for summary judgment unless the assertions are shown to be manifestly false, either because of their inherent implausibility or because of their inconsistency with the contemporary documents or other compelling evidence.”
30. Of forensic interest, also, is the apparent general judicial reservation regarding the passage in the 1982 UK judgment of Webster J. in Paclantic v. Moscow Norodny Bank [1983] 1 WLR 1063, a passage described subsequently by the Court of Appeal [1984] 1 WLR 930, 939, as ” a statement which seeks to categorise, in exclusive terms, the circumstances in which such affidavit evidence can be rejected” and concerning which terms, the circumstances in which such affidavit can be rejected” and concerning which the Court of Appeal ” wished to express its reservations without expressing any concluded view”. Webster J. had said:
“In the absence of any opportunity to test the defendant’s veracity, it seems to me that the court should never give summary judgment for the plaintiff where, upon the evidence before it, even a faint possibility of a defence exists.
I therefore conclude, therefore, that I can reject Mr. Wong’s affidavit, or any evidence contained in it only if the affidavit, or that evidence, is inherently unreliable because it is self-contradictory, or if it is inadmissible, or if it is irrelevant. I conclude that I could reject a defendant’s evidence when there is affirmative evidence which is either admitted by the defendant or unchallenged by him, and which is unequivocally inconsistent with his own evidence; and where no, or no plausible explanation is given of the inconsistency; because in such a case I could, but would not necessarily, conclude that on the evidence not even a faint possibility of a defence existed. But I conclude that I should not reject the defendant’s evidence if, merely because of its inherent implausibility or its inconsistency with other evidence. I find it incredible or almost incredible.”
31. Note that in the above review of the UK dicta, the simple “credibility” test appears only once as a standalone test – in the Standard Chartered Bank case. Glidewell L.J. mentions it in National Westminster v. Daniel apparently just to confirm his view that it is the same test “more or less (as I see it)” as Ackner L.J.’s Banque de Paris formula. “Credibility” is he condensed version.
32. McKechnie J. in Harrisrange states his agreement with Glidewell’s reading of the two tests, finding them “to have an equivalence of both meaning and result”. Hardiman J. was not so sure. In Aer Rianta v. Ryanair [2001] 4 I.R. 607, he noted “First National Commercial Bank v. Anglin [1996] 1 I.R. 75 and the cases cited therein seem to me to focus on a specific aspect of the questions, that of credibility.” He noted that although counsel had agreed the test the court was to apply, they did not agree on what the test meant. “I consider that the references in these cases to credibility and to fair and reasonable probability may be misleading if read without reference to their own unique facts”.
33. In a decision the previous year (Acc v. Malocco [2000] 3 I.R. 191, Laffoy J. also appeared to appreciate the need to rework the Banque de Paris and credibility tests stating that “in my view, the court has to look at the whole situation (and) assess the cogency of the evidence adduced by the defendant in relation to the given situation which is to be the basis of the defence”. (Note: Laffoy J.’s reference to the plaintiff in this passage as reported is clearly in error).
34. Turning to the (unreported) decision of Kelly J. in Aer Rianta v. Ryanair, at first instance, we find the following ratio:
“I have to look at the whole situation to see whether the defendant has satisfied me that there is a fair or reasonable probability of it having a real or bona fide defence. I have to ask ‘is what the defendant says credible?’ In my view, it is not, Mr O’Leary’s credibility is undermined by the very document which e exhibits, his assertion of an agreement when the exact opposite is indicated by those exhibits, and the inconsistencies both as to the form of the agreement and when it was allegedly entered into.”
35. Because Kelly J. followed the twin test, it is instructive to determine why he was overturned on appeal. Hardiman J. was of the view that “credibility” may mean different things to different people, even lawyers. He noted that ” counsel for the plaintiff urged the question ‘is what the defendant says credible?’ does not involve giving the word credible its literal meaning but its more contemporary meaning of ‘not improbable’ or at least not ‘seriously improbable’ (as opposed to) ‘not incapable of rational belief’, and that “plaintiff’s counsel conceded that the defendant’s factual contentions were neither logically impossible nor capable of outright contradiction by evidence which was itself unimpeachable”. However, the plaintiff#s counsel submitted that they were “utterly improbable at least when viewed in their commercial context”. Hardiman J. noted that Kelly J. (hearing the motion for summary judgment) said of the defendant that ” his credibility is undermined by the very documents he exhibits… inconsistencies both as to the form of the agreement and when it was allegedly entered into”. Hardiman J. noted that “both parties claim that the commercial realities of their relations, properly understood, makes the other’s contentions implausible to the point of near impossibility”. Hardiman J. summed up his view that ” one cannot be confident where the justice of the case lies without hearing oral evidence and cross-examination” and the Supreme Court allowed the appeal.
36. But the Anglin test is still in use: Murphy J.’s adoption of the Banque de Paris formula and his reiteration of another judge’s condensed version of that formula (“is it credible?”) undoubtedly causes difficulties. The Banque de Paris formula looks good, It sounds good, But does anyone know what it means? Are there not too many words in it? Is “fair” the same as “reasonable”? Is “bona fide” the same as “real”? What is a “reasonable probability”? What is a “real defence”? How does the “real prospect of success” test referred to by Clarke J. in Tuama & Ors v. Casey & Ors [2008] IEHC 49 (as being different to the “arguable case” test) differ from the real defence test? What if the defence is real but not bona fide (i.e. some other unworthy agenda).
37. I am actually of the view that the Banque de Paris test is hopelessly abstract. It is a lay litigant’s nightmare. Not being able to figure out the parameters of the Banque de Paris formula, layers and judges are turning to the user-friendly “equivalent” credibility test, allowing the court to judge, not just whether the defendant’s defence adds up, but whether the judge believes it. In short, the formulation of “a fair or reasonable probability of the defendant having a real or bona fide defence” (the Anglin test of 1996) appears to have morphed into the single test of credibility.
Due Process for a defendant on the Fast Track
38. For both parties, therefore, the stakes in a motion for liberty to enter final judgment are high. For the defendant it could be make or break.
39. The defendant cannot afford to take the risk of relying on anything short of a full cards-on-the-table statement of his evidence. He needs to “support” his assertions. He cannot assume that hearsay evidence will even be admitted, let alone treated as in any way probative. He cannot afford, even at this early stage in the proceedings, to leave out any scintilla of evidence for the absence of which his entire defence might be rejected as “incredible” or ” implausible”.
40. And he may only get two days prior notice of the plaintiff’s grounding affidavit!
41. Look, for instance, at the written judgment of Birmingham J. in EBS Ltd v. Campbell & Anor [2013] IEHC 154, in which he comments on the “vagueness” of the defendants’ affidavit evidence, saying that “there is nothing whatever to support the view (my emphasis) that an agreement was actually concluded” and that ” there is nothing whatever (my emphasis) to suggest that the second named defendant was coerced” and that ” the second named defendant has failed to provide any evidential support (my emphasis) for the assertion … and it remains a bare unsupported assertion”.
42. The possible defence, following the judgment of Clarke J. in Ulster Bank Ireland Ltd. v. Louis Roche & Anor [2012] IEHC 166, regarding when a lending bank may be obliged to inquire whether the party offering the guarantee may not be fully and freely entering into the same, seems not to have been canvassed before Birmingham J. The latter case, involving an “implausible” defence (which turned out to be true, after a full hearing) might not have survived the motion assessment of the sort applied by Birmingham J.
43. Looking at these two written judgments, each involving a fully argued analysis and logic, two points occur to me. First, it is not clear to me that one is on analysis of evidence which was heard and the other on evidence which was only read. Secondly, that the latter analysis by-passes the first test which is whether there is an issue of fact which should be left to a jury and purports instead to assess the defendant’s “credibility” in the equivalent sense (above outlined) of whether is a fair or reasonable prospect of a real or bona fide defence. Venturing into the affidavit evidence to determine its capacity to support this fair or reasonable prospect seems to me to be almost indistinguishable from assessing whether the defendant has a real prospect of success (a hurdle which, per the Supreme Court on Harrisrange, is not one which a defendant has to surmount). The effort expended in weighing this test and rationalizing the result is one and the same as that which we expect of a jury deliberating in the jury room, but it is wholly premature at the motion stage, given that the defendant has not yet been afforded the due process which trial of fact demands.
44.At the point in the evolution of the test the judge has opened up the analysis to a jury type assessment of truth. Thus, we find in ACC plc v. McCann & Anor [2011] IEHC 205, Hogan J. commenting that a defendant alleging in a supplemental affidavit that his signature was forged “is justly viewed with scepticism” as evidencing a risk sharing partnership (“unstable”) or as raising on estoppel (“fanciful”). And we find Birmingham J. in Zurich Bank v. McConnon [20111] IEHC 75, rejecting the defendant;s characterisation of the bank’s actions.
45. In short (recalling the point first cited in the above paragraphs), the judges may have fallen into the bad habit of confusing their two roles of judge and jury. In doing so, they risk breaching the defendant’s right to a fair hearing.
46. When the court ventures into the jury’s domain, certain additional due process features are triggered. If a defendant must not only assert a given situation, nut “particularize” his assertion and must also point to evidence which could “support” his narrative, then he may be entitled to demand that the determination on the motion be postponed until he has perhaps cross-examined the plaintiff’s opponent and.or until he has obtained discovery of correspondence and other documentation.
Litigants in Person – A Special Case?
47. If the court is expected to embark on a line-by-line examination of a defendant’s affidavit and make its decision on the basis, is this the full extent of its responsibilities towards a lay litigant? Reading the defendant’s affidavit as presented, it may occur to the judge that there may be more to the defendant’s case than he has set out there. I have often found that a non-leading question from the bench can produce a fuller and more detailed narrative than that deposed to. Ought the court, giving a reason, invite the filing of a supplemental and fuller affidavit?
48. Equally, if the legal test to be applied at the leave to defend stage is an “arguable defence” (or any other of its various other descriptions) is it not often the case that the judge/lawyer can spot a legal angle or issue of which the defendant/layman is likely to be completely unaware? Is there “effective participation” (in the sense often cited in the Human Rights case-law) if appreciation of the technicality of the applicable test is clearly beyond the layman, but the court feels unable to prompt him.
Fair Procedures and Human Rights
49. The High Court has a special procedure for reviewing the legality and processes of the acts of administration bodies. In every one of these so-called judicial reviews, the court will double-check that the procedures employed by the statutory body in question comply with the requirements of natural justice. Yet curiously, the process of the High Court itself in the procedures it follows in these fast track summary judgment cases seems never to have been rigorously scrutinised to confirm due process.
50. All of the O. 37 cases focus exclusively on the factual and legal issues, and the decision to adjourn to plenary hearing is never for the reason that the fast track procedure may have operated unfairly.
51, Put it another way: although the summary judgment is itself often appealed on the merits, the fairness of the procedure has not been questioned. Is there a tacit understanding that while administrative bodies or tribunals may err in regard to due process, High Court judges set their own un-reviewable standards of fairness? Since they are arbiters of justice, they are, in short, presumed to be acting fairly in everything they do.
Is the presumption rebuttable?
52, I should record the fact that in 2012, the Irish Commission for Human Rights felt it appropriate to formally request the Irish judiciary to make changes to the provisions of O. 37 of the Rules of the Superior Courts. The very fact that the Commission took this forthright step suggests that, from a human rights perspective, there must be, prima facie, a clear likelihood of the European Court of Human Rights finding the Irish procedure to be an infringement of Article 6, unless these changes, or some equally effective alternatives, are put into operation.
53. So, if the Rules of Court, operate to exclude due process in any case and the procedure is therefore in breach of the Convention on Human Rights, s. 3(1) of he Act of 2003 requires State “organs” (including the Master of the High Court) to act in a manner compatible with the State’s obligations. I cannot simply assume that the judge of the High Court, or the new Court of Appeal or the Supreme Court will ultimately set the matter straight. Prevention is always better than cure.
54, Consequently, a motion for liberty to enter final judgment cannot be listed by me in the High Court motions list for hearing unless I am satisfied that the matter is ready to be heard fairly. Were I to do so otherwise, I would be in breach of s. 3(1) of the European Convention on Human Rights 2003.
55. In short, apart altogether from checking the plaintiff’s paperwork, I have to do my best to make sure that the defendant will have his opportunity to “effectively participate” at the hearing of the motion (see e.g. Bradley v, Chamberlyn [1893] 1 Q.B. 439, were the UK Appeal Court rules that a defendant ” should be advised” to have an affidavit sworn in case his preliminary technical objection to the summons should fail). It would seem to follow that if a lay litigant happens to disclose matters to me in open court, which he had not set out in his filed replying affidavit, I should advise him to request an opportunity to file a supplemental affidavit. Or, indeed, that if his first affidavit should only constitute a bald denial of liability or the “mere assertion of a given situation” without colour or context, that it is appropriate that I signal to him his need to put all his cards on the table.
56. The problem now is that, with the High Court more and more inclined to determine the issue on the basis of a jury room assessment of credibility, the due process entitlements of a defendant must be correspondingly reconfigured. Yes. he does now need to put all his cards on the table, and what if he tells me he cannot do so without discovery by the plaintiff? I would have to decide whether to adjourn the motion in my list to allow the defendant to issue a motion for discovery under O. 31 or the Rules. Of course, such a move might well derail the fast track application for judgment, but so what? No plaintiff has a constitutional, statutory (or even simply legal) entitlement to be facilitated by any fast track procedure.
57. That course would seem to be the proportionate and due process response to the courts’ increasing tendency to deny the defendant a leave to defend on the basis that his affidavit evidence is not credible. The defendant will, this way, at least have an opportunity of arguing that his “incredible” affidavit might be credible if the defendant’s documents were discovered and were found to substantiate his version of dealing between the parties.
58. In a busy Monday Motion List, “credibility” risks being a subjective test: “do you believe it?” But inherent credibility is an objective test: “is it believable?” Or, assessing the cogency of the defendant’s evidence, would you have to direct the jury to dismiss? If it is capable of belief, it should be left to the jury to decide whether they believe it after they hear both sides viva voce. In short, to use the US jurisprudence: “is it a triable issue?”
59. If credibility is, in reality, the litmus test being applied to the defendant’s affidavit evidence on the hearing of a summary judgment application, the procedure is prima facie unfair to the defendant. A comparison with the US procedure shows just how plaintiff-favoured the Irish system has become. It follows that the court should treat sympathetically all “due process” requests by a defendant, up to and including requests for discovery of documents.
60. There should be no blanket prohibition on pre-summary judgment motion discovery applications. Indeed, Hardiman J. reminds us (Aer Rianta v. Ryanair [2001] 4 I.R. 617, 619) that:
“Since the order provides for alternative, more secondary and elaborate methods of resolving the issues, the plaintiff’s entitlement (to summary judgment on a motion) must appear clearly enough to render these unnecessary”.
61, I have to decide in this case whether or not to adjourn the motion in my list, at the request of the defendant. I am informed by the defendant that he is sourcing additional evidence, some expert. I am urged to keep the case in my list because it is not ready to be heard.
62. In the case of Ex Parte Polemis [1974] 1 WLR 1371, the Master of a Greek vessel involved in an oil spillage was served at 10.30am with notice of a hearing at 2,00pm. He was granted an adjournment, but only until 4.00pm! Widgery C.J. later pointed out that the mere allocation of court time was of no value if the party in question was deprived of the opportunity of presenting his case in the fullest sense, including preparing his supporting evidence.
63. In the 1968 case of Priddle v. Fisher & Sons [1968] 3 AER 506, Parker C.J. went further in concluding that an industrial tribunal which fully expected a dismissed employee to appear with a trade union advocate. but which was informed via a third-party telephone call five minutes into the hearing that bad weather had prevented their appearance, should have adjourned of its own motion and not proceeded, as it had done, on the basis that an adjournment “had not been asked for”. Not to do so, the Chief Justice ruled, was n error in law and not merely an unreviewable discretion. He also concluded by confirming that “an exercise of judicial discretion on the wrong principle is appealable as a point of law”. He held that the tribunal erred in law in refusing to adjourn, knowing the employee had always intended to prosecute his claim, “merely because he had not asked expressly for an adjournment”.
64. The message from these two judgments is loud and clear: due process is not a matter of discretion; it is a legal obligation requiring proactive case management by the Court. That “error of law” conclusion is important because the Supreme Court in Ireland will hear appeals on that basis but not where the matter complained of was of a wholly discretionary nature. The Supreme Court will ensure that justice is not imperilled.
65. Accordingly, the High Court has constraints of legal principle and of statute governing hearings, even hearings on affidavit and especially when the outcome may be final judgment. In this case, the defendant is seeking time to prepare evidence. He is not seeking time for discovery of the defendant’s documents, so I do not have to consider whether the phrase”matters in issue” in Order 31 necessarily mean only facts pleaded and denied in the formal pleadings, but extend also to averments which are disputed in the affidavits, though the provisions of the Human Rights Convention probably warrant such an interpretation in the interests of due process.
66. I am granting the defendant his adjournment because to do otherwise would mean listing the motion before the Court when the papers are not “in order”, meaning not immediately ready for a hearing which is fair. I do so because I am statutorily obliged to do so. Also, because justice demands it.
Edmund Honohan