Order 22 - Summary Judgment

Question 1

22.01 Scope of Order

Answer 1

Applies to all civil proceedings in the Court to which, in accordance with section 4 of the CPA, that Act applies.

Question 2

22.02 Interpretation

Answer 2

(1) (a)-(b) Reference to P and D includes P by CC and D by CC
(2) expressions used in this Order, unless the contrary intention appears, have the same meaning as in Pt 4.4 of Chapter 4 of the CPA

Question 3

22. 03 App. by plaintiff for judgment

22. 16 App by defendant for judgment

Answer 3

App under s61 CPA by plaintiff in civil proceeding for summary judgment in proceeding to be made in accordance with this order

Application under section 62 of the CPA by a defendant in civil proceeding for summary judgment in proceeding shall be made in accordance with this Part of this Order.

Question 4

22.04 Summons and affidavit in support (verifying relevant facts, stating belief of no prospects - 14 days before listed day)

Answer 4

(1) Application to be made by summons supported by affidavit
(a) verifying the facts on which the claim or the part of the claim to which the application relates is based (b) and state that in the belief of the deponent, the defence to the claim or part of the claim:
● (i) Has no real prospects of success; or
● (ii) Has no real prospects of success except as to the amount of the claim or as to the amount of the relevant claim.

(2) Where a statement in a document tends to establish such a fact within (1) and the document would be admissible at trial, can set forth the statement in the affidavit to establish the fact
(3) Aff can contain statement of fact based on information and belief if the grounds are set out and having regard to the circs, court considers that the statement ought to be permitted.
(4) Must serve affidavit/summons and any exhibits on the defendant at least 14 days before the day for hearing named in the summons

Question 5

22.05 Defendant to show cause (with affidavit, serve at least 3 days before hearing date)

Answer 5

(1) May show cause by affidavit or otherwise to the satisfaction of the court. (2) Affidavit may contain statement of fact based on information and belief if the grounds are set out. (3) D must serve on P at least 3 days before the hearing date listed in the summons.

Question 6

22.06 Affidavit in reply

Answer 6

(1) If D serves r 22.05 affidavit, court may by order allow P to serve reply affidavit to D (2) rules 22.04(2) and (3) apply mutatis mutandis

Question 7

22. 07 cross-examination on affidavit

22. 21 X-exam on affidavit

Answer 7

(1) Court can order any party/maker of any affidavit (a) attend and be exam’d/X-exam’d or (b) produce any documents/copies of documents
(2) if party is corp, can order in respect of director, manager, secretary or other similar officer or any person purporting to act in such capacity.

Just like 22.07 above.

Question 8

22.08 Hearing of application (dismiss; judgment; leave to defend; dispose)

Answer 8

(1) Subject to Part 4.4 of CPA, on hearing of application Court may:
● (a) Dismiss the application;
● (b) Give such judgment for the P against D to which app relates as appropriate having regard to nature of relief/remedy claimed
● (c) Give D leave to defend wither unconditionally or on terms such as giving security, paying money into a court etc.
● (d) With the consent of all parties, dispose of the proceeding finally in a summary manner, despite 77.03(1)
(2) Court can stay execution of any judgment given per (1)(b) until after CC or other parts of claims still to be dealt with finalised.

Question 9

22.09 Assessment of damages

Answer 9

Where court gives summary judgment under s 63 of CPA for damages or the value of goods to be assessed, assessment of damages then occurs in accordance with order 51.

Question 10

22.10 judgment where debt amt unascertained

Answer 10

On application under s 61 of CPA for summary judgment on debt claim, (a) can make a declaration as to liability for the debt and order that its amount be ascertained in such manner as the Court directs;
(b) give leave to enter judgment for debt once amount is ascertained.

Question 11

22.11 Directions (where D gets leave to defend or still part of claim remaining

Answer 11

(1) where on application under s 61 for SJ, leave is given to defend, or SJ is given on claim/part but execution stayed pending trial of outstanding claim or counterclaim as case may be, Court can give further directions.
(2) Court can direct that (a) an affidavit made under this order shall serve as a D or a D and CC; (b) may order to be set down for trial and (c) may define the questions to be tried.

Question 12

22.12 Continuing for other claim or against other D

Answer 12

Where the plaintiff obtains summary judgment under section 63 of the CPA on a claim or part of a claim against any defendant, the plaintiff may continue with the proceeding for any other claim or for the remainder of the claim or against any other defendant.

Question 13

22.13 judgment for delivery up of chattel

Answer 13

Where Court gives SJ under s 63 for delivery up of specific chattel, may order the party against whom judgment is given to deliver up the chattel without giving party option to retain on paying assessed value

Question 14

22.14 relief against forfeiture

Answer 14

Tenant can reply for relief after SJ for possession of land on the ground of forfeiture for non-payment of rent has been given under s 63 as if given at trial.

Question 15

22. 15 setting aside judgment (set aside/vary judgment of non-attending party)
23. 23 Setting aside judgment (set aside/vary judgment of non-attending party)

Answer 15

Court may set aside or vary any judgment given against a party who does not attend on the hearing of an application under s 61 of CPA.

Court may set aside or vary any judgment given against a party who does not attend on the hearing of an application under s 62 of CPA.

Question 16

22.17 summons

Answer 16

Shall be made by summons

Question 17

22.18 Affidavit in support (D as applicant - not less than 14 days before hearing)

Answer 17

(1) If D intends to rely on aff. in support, shall b filed with the summons
(2) Where statement in document tends to establish fact upon which the D relies and at trial of proceeding document would be admissible by or under the Evidence Acts or any other Act to verify the fact, the affidavit may set forth the statement.
(3) Affidavit relied upon by D may contain statement of fact based on information and belief if grounds are set out and, having regard to all circumstances, Court considers that statement ought to be permitted.
4) Defendant shall serve summons/any supporting affidavit (+ exhibits) on P not less than 14 days before day for hearing named in summons.

Question 18

22.19 plaintiff to show cause

Answer 18

Just like r 22.05.

Question 19

22.20 affidavit in reply

Answer 19

(1) Where P serves 22.19 affidavit, court may by order allow D to file an aff in reply (2) Rr 22.18(2)/(3) apply with any necessary modification

Question 20

22.22 hearing of application

Answer 20

(a), (b), (c) here like r 22.08(1)(a), (b), (d) above

Question 21

22.24 Third or subsequent party (joiner/joinee can apply for SJ)

Answer 21

(1) A party who has joined a third or subsequent party to a proceeding may apply for summary judgment against them on the ground that their defence or part of defence has no real prospect of success.
(2) Party joined as third or subsequent party can apply for SJ on the ground that the claim against them has no real prospect of success.
(3) -(4) This order applies with any necessary modifications.
(5) Also court retains power to order to proceed to trial even if no real prospects of success (a) bc not in IOJ for SJ, or (b) nature of proceeding means only full hearing on merits would be appropriate.