Allied Irish Banks Plc v Collins
| Jurisdiction | Ireland |
| Judge | THE MASTER OF THE HIGH COURT |
| Judgment Date | 16 November 2011 |
| Neutral Citation | [2011] JILL-IEHC 111601 |
| Court | High Court |
| Date | 16 November 2011 |
[2011] JILL-IEHC 111601
THE HIGH COURT
RSC O.37 r10
BANK OF IRELAND v EDUCATIONAL BUILDING SOCIETY 1990 1 IR 220
CRAWFORD v GILMORE 1891 30 LR IR 238
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
RSC O.40.4
RSC O.40 r1
THREE RIVERS DISTRICT COUNCIL v BANK OF ENGLAND 2001 2 AER 513
RSC O.37
RSC O.63 r7
RSC O.37 r12
AER RIANTA CPT v RYANAIR LTD 2002 1 ILRM 381
HARRISRANGE LTD v DUNCAN 2003 4 IR 1
LLOYDS BANKING CO v OGLE 1876 1 EXD 262
PROVINCIAL BANK OF IRELAND LTD v DONNELL 1934 NI 33
BARCLAYS BANK PLC v O'BRIEN 1993 4 AER 417
AIB PLC v GALVIN DEVELOPMENTS (KILLARNEY) UNREP FINLAY-GEOGHEGAN 29.7.2011 2011 IEHC 314
SWAIN v HILLMAN 2001 1 AER 91
DAIMLER CO LTD v CONTINENTAL TYRE & RUBBER CO (GREAT BRITAIN) LTD 1916 2 AC 307
MILES v BULL 1969 1 QB 258
ROYAL BROMPTON HOSPITAL v HAMMOND 2001 EWCA CIV 550
TAYLOR EVIDENCE 1858 VOL 2 1112
MAPP v GILLHOOLEY 1991 2 IR 253
CONSOLIDATED EDISON CO v US LABOUR BOARD 1938 305 US 197
T A MILLER v MINISTER FOR HOUSING 1968 1 WLR 992
RSC O.39
US FEDERAL RULES OF CIVIL PROCEDURE RULE 56
GELHORN SUMMARY JUDGMENT IN ADMINISTRATIVE ADJUDICATION 84 HARVARD L.REV 612
HALSBURY 3ED 1958 VOL 22 765
MASTERSON v SCALLAN 1927 IR 453
ANNUAL PRACTICE 2007 569
JACOBS & WHITE EUROPEAN CONVENTION ON HUMAN RIGHTS 4ED 2006 176
EUROPEAN CONVENTION ON HUMAN RIGHTS 2003 S2(1)
EUROPEAN CONVENTION ON HUMAN RIGHTS 2003 S5
EUROPEAN CONVENTION ON HUMAN RIGHTS 2003 S3
DECISION of THE MASTER OF THE HIGH COURT16th November, 2011
Language is important. A defendant in a case of the types listed in Order 2 of the Rules of the Superior Courts is, apparently, not ipso facto entitled to defend the claim unless the plaintiff says he may. Instead, he must first obtain from the Court "leave to defend" (O. 37, r. 10). The phrase is unfortunate and, historically, originated in the procedures of another era. It is peculiarly inappropriate in the present age in which citizens enjoy the full panoply of human rights, including, of course, the right to a fair hearing before the Courts.
The Rules of Court do not specify what the defendant needs to show if he is to succeed in resisting the plaintiff's application for summary judgment.
Note that any defendant refused "leave to defend" has only one further avenue of redress: an appeal to the Supreme Court. For a litigant in person, a self-representing or "lay" litigant, this is a mountain to climb. To passers by, this does not look like even handed justice.
Quite probably, present day judges who employ the phrase "leave to defend" do not pause to consider the implicit slur on the defendant's expressed position. The phrase is, unconsciously, disrespectful and patronising. Unfortunately, the context in which the "leave" is granted or refused only serves to confirm a lay litigant's impression that this is about whether the Court will be patient enough to tolerate his efforts to explain his position. He gets one chance. He is one of perhaps one hundred matters listed before one judge on a Monday morning. Everybody talks fast. The lay litigant must feel cowed to keep his arguments short. That may be his undoing. As recently as 1999, in Bank of Ireland v. Educational Building Society, 1 I.R. 220,the Supreme Court quoted Barry L.J. from an old Irish case Crawford v. Gilmore [1891] 30 LR Ir 238, 245:-
"I am of the opinion that … the mere length of time which has been occupied by the argument of this case … shows that it does not come within the rule which allows final judgment to be summarily marked on motion."
In other words, the self-representing litigant's chances of getting "leave to defend" may depend on the time he takes to make his case (the longer he takes, the better his chances), and if he had lawyers who could spin out the argument, his chances would greatly improve. Or perhaps Barry L.J. was just joking?
Then again, it is perhaps the crowded Monday morning list which is the joke? We need to face up to the disturbing possibility that the lay litigant may not be getting a fair hearing on a Monday morning. We need to disassemble all the features of the process and critically check them for the decay of injustice.
One of the problems is that the Monday morning list is comprised of a mixture of different types of "motions", so called, some of which are interlocutory and some final. The motions this decision is concerned with are "motions for liberty to enter final judgment". These are applications by plaintiff's to, in effect, deny the defendant his "leave to defend" and to permit the plaintiff to get and enforce judgment for the amount claimed. Clearly, this is a "trial" for the purposes of the "fair hearing" article (Article 6) of the Human Rights Convention. Lose on a Monday and the defendant has lost the case. This type of motion, therefore, is clearly not an interlocutory application for some temporary order pending a full hearing at some later date.
The upshot is that we have a trial being processed in a Monday list as if it were just another interlocutory application. Plaintiff's often offer hearsay evidence in support of the claim when, according to Order 40(4) affidavits should be confined to such facts as the witness is able of his own knowledge to prove "… except on interlocutory motions". (Indeed, properly structured as a trial, the plaintiff should probably be governed by Order 39, "witnesses at the trial of any action shall be examined viva voce").
Order 40, rule 1 provides that "upon any motion … evidence may be given by affidavit but the Court may order the attendance for cross-examination of the person making such affidavit". In my experience, the Court will not entertain a lay defendant's application to cross-examine the plaintiff's deponent on a Monday morning. Notices to cross-examine are being set aside by the Court as if cross-examination was only an optional luxury instead of a fair hearing entitlement. (See, for example, Order of 30 th May, 2011, in AIB plc. v. Sweeney and Another [2010] 2403 S).
In an effort to provide for earlier "trial" dates for cases which are indefensible, the judges have created a fast track procedure which jeopardises some defendants' right to a fair hearing. This is not a price worth paying just to achieve good productivity figures for the Courts Service.
It should be borne in mind that the litigation procedures spelt out in the Rules of the Court are not writ in stone. We made them. We can change them. No plaintiff has a Constitutional right to be facilitated with a fast track process such as that now available with the Summary Summons procedure. The classic procedural model, the Plenary hearing (or "evidentiary" hearing as the Americans call it), with full adversarial clash and live testimony, has always been regarded as the fairest trial. It is due process. It is natural justice in action. Modify it and you may unwittingly damage in-built protections serving the interests of justice.
It should be borne in mind that no litigant has an entitlement, as a matter of law, to have his case fast tracked. The origins of today's summary procedure were in mid 19 th century legislation to improve the efficiency and transparency of the bills of exchange mechanism. It was thought that encashbility should be underpinned by a procedure for prompt hearing of legal challenges as to validity. In effect a defendant should not be permitted to avoid liability by abusing the litigation process on the strength of an unstateable defence.
Obviously, abuses of process must be corrected. The Superior Courts have inherent powers to do so. The summary judgment option was extended to other classes of action in the post Judicature Act Rules of Court (in Ireland the 1877 Rules) and somewhere along the line, the test operated by the court lost contact with its (abuse of process by the defendant) origins, and sought to focus on the reality of the defendant's supposed defence: plaintiff's did not have to prove abuse of process, instead, defendants have to prove, a stateable defence. This plaintiff friendly bias and the shifting of the burden of proof although heavily constrained by appeal courts, nevertheless created a considerable practical imbalance between the parties. No plaintiff can complain of injustice if his application for summary judgment is unsuccessful as he can proceed with the case on the standard track. By contrast, the defendant is clearly exposed to injustice if the hearing of the motion is not wholly in accordance with the law and precedents in that regard. Only comparatively recently has the UK recast the procedure to allow a defendant to avail of a similar application to summarily dispose of the plaintiff's case if there be no real case to answer (see Three River [2001] 2 AER).
It was probably not a good idea to reinforce this one-sided procedure by creating an entirely new class of summons for these actions in the Free State's 1926 Rules of Court. The new rule included all types of action formerly dealt with by Writ of Summons specially indorsed, and later again a subset of these were given their own summons, the Special Summons, leaving a very limited range of actions (broadly speaking, for "special" or known debts or other clear cut, black and white claims), to be processed under Order 37. The 1926 Rules provide that a plaintiff must seek summary judgment in such a case. There is no other route (save, of course, plenary hearing by consent). It would appear, logically that no plaintiff should use the Summary Summons unless he is confident of securing summary judgment. If he is not confident he should use the Plenary...
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