Summary Decree Flashcards
What is the purpose of summary decree?
There are times when defenders lodge defences which consist of Simple denials without any existing explanation of defence to the claim. Sometimes the defences contain admissions such that there is no answer to the main part of the pursuer’s case.
If summary decree procedure did not exist then defences could be used as a delaying tactics forcing the pursuer to go to a debate and argue that the defences are irrelevant.
If denials are genuine and meritoroius defence then that is acceptable but if it is a delaying tactic then motion for summary decree is acceptable. This is Aimed at preventing the defender taking advantage of the court system
Campbell v Golding 1992 S.L.T. 889
Defender has been convicted of a relevant statutory offence and the onus of proof is transferred to him e.g. Careless driving:
Woman was killed in road traffic accident when car driving was hit head on by car. Husband was injured. Ina action by husband and sons of deceased the pursuers claimed damages in respect of the death and for his personal injuries. The defender did not dispute that collision had occurred when he was overtaking another car and on wrong side of road. He also admitted having being conviction of contravention of s3 road traffic act 1988 - careless driving.
The defender averred that the collision had occurred without fault on his part as roads were wide enough for him to pass.
Pursuers moved for summary decree at open record stage in terms of rule in place at the time founding upon the undisputed circcumstances of action and the admitted conviction.
In Opposing the conviction the defender sought to rely on his averments of fault on the part of the deceased.
Held:in circumstances of the agreed intrusion of defenders car into wrong carriageway and the agreed conviction it was for defender to aver that the collision occurred without fault on his part and avers of fault on part of deceased did not amount to defence for the action.
Any fault by the deceased would only affect deceased claims and not his for personal injury
Upheld plea-in-law that the defender was liable to make reparation and fixed a proof on plea of contributory negligence on death claims and restricted claims for personal injuries to quantum only.
Frew v Field Packaging Limited 1994 S.L.T. 1193
Another example: Relevant statutory case which involves strict liability or absolute liability with a reasonable practicability escape clause, which has not been pled.
A workman raised an action for damages for PI sustained in accident at work when arm caught in machine.
He raised an action saying pursuer was at fault under common law and statute.
The employers admitted that the pursuers arm caught in machine but pled a case of contributory negligence.
The pursuer moved for summary decree arguing that defences disclosed no defence to averments of breach of duty imposed by factories act.
The employers resisted summary decree arguing that circumstances were not known and not admitted and it was impossible to ascertain the full circumstances of the accident and it was Impossible to see whether the accident was foreseebale.
Lord Prosser held that the rule in place at time was Permissive rather than mandatory and issues of fact should be investigated at proof and issues of liability remain to be decided the court should be slow to deny probation to some other aspects of fact and breach of duty in relation to the same accident.
In this case the pursuers’ pleadings gave a sufficiently clear picture of the machine in question and defenders pleadings confirmed rather than rebutted the soundness of the pursuer’s statutory case so they granted summary decree to the extent of upholding pursuers plea and repelling defenders plea and quoad ultra proof before answer was allowed.
Upheld plea-in-law of entitlement to reparation
When is summary decree not available?
Rule 17.1 OCR - rules of summary decree. They do not apply to every type of case. Summary decree unavailable in: Family actions Civil partnership actions Actions of multipoinding Actions under the Presumption of Death (Scotland) Act 1977
What is the procedure of summary decree?
Rule 17.2 OCR - sets out procedure to be followed.
Party to an action may at any time after defences are lodged apply by motion after defences have been lodged for summary degree.
Ana placation can only be made on grounds that an applicants case has no real prospect of success and there is no other compelling reason why summary decree should not be granted at this stage.
The party enrolling the motion may request the sheriff:
grant decree in terms of all or any of the craves of the initial writ or counterclaim;
dismiss a cause or absolve any party from any crave directed against him or her
to pronounce an interlocutor sustaining or repelling any plea-in-law, or
to dispose of the whole or part of the subject-matter of the cause
What are the Sheriff’s options?
Rule 17.3 OCR - the sheriff has a number of options.
The Sheriff may:
grant the motion in whole or in part, if satisfied that the conditions are met
ordain any party, or a partner, director, officer or office-bearer of any party to produce any relevant document or article
or ordain to lodge an affidavit in support of any assertion of fact made in the pleadings or at the hearing of the motion
Even if the sheriff refuses the motion for summary decree a subsequent motion may be made where there has been a change in circumstances
How does the summary decree work in practice? A good example is:
Laidlaw Bank Limited v Gordon F Green and Others 1994 S.L.T. (Sh. Ct) 18
Decided on an earlier version of the rules but still applicable.
In this case a bank raised an action of payment against three alleged guarantors of a company which had borrowed money from them and had subsequently been placed in liquidation. The bank sought summary decree against all three int terms of (then) rule 59.A. The rule was granted by the sheriff then one of the defenders appealed to the sheriff principal. The alleged guarantor argued that whereas the pleadings referred to one guarantee, the true position was that he had signed one document and the other defenders had signed two documents with the effect that the bank was not entitled to decree against all three defenders jointly and severally. He also maintained that there was a further line of defence which did not appear in the pleadings; namely, that he had signed the guarantee at the request of the third defender acting as an agent for the bank under the mistaken belief that he was signing a loan stock agreement and that the guarantee was reducible.
The sheriff principal held that the appellant had bound himself for the whole of the sums and that he had raised no maintainable defence, no facts had been suggested leading to the conclusion that their defender was an agent of the bank and the proposed defence was unstateable. The appeal was therefore refused. In reaching his decision the sheriff principal referred to several court of session cases which in his opinion provided appropriate guidance. He then provided a helpful summary at p.50:
“Summary decree will not pass against a defender who appears to have the basis of a statable defence but who has expressed it badly; on the other hand summary decree will not be refused merely because there is a drafting error or a lack of detail in the pursuer’s pleadings. There will be some cases in which a defender is justified in stating a bald denial and putting the pursuer to proof, but such cases do not include those in which the pursuer's pleadings and productions indicate that there is a prima facie case calling for an answer, especially where the facts founded upon by the pursuer are within the defender's knowledge. Where the defence stated is manifestly irrelevant and not capable of rectification by adjustment or amendment it would be appropriate to grant summary decree. Conversely, it may be refused if the pursuers' pleadings give rise to a genuine and substantial question of relevancy. Whether or not there is a statable defence is a matter to be tested at the time when the sheriff is hearing the motion.”
Frimkovar UK Limited v Mobile Technical Plant (International) Limited, 1990 S.L.T. 180
Here the company supplied engineering parts to another company for the use and adaptation of trucks which they were carrying out for truck manufactures. The adapters paid part of cost of parts but refused to pay balance. The suppliers sued for the balance. The defenders averred that balance was not payable until they received money from their own customers and the pursuers were in breach of contract in that the goods had been delivered late and pursuers were liable for defenders damages for late delivery for which defenders lodged a counter claim for later delivery. The pursuer sought summary decree in terms of the rule in place at the time and argued that the defence was in such unintelligible terms as to be meaningless and as defenders were no longer trading it was urgent that pursuers obtained a decree if it was obvious that defenders had no defence. The defender’s argued that the matter would be more appropriately argued on procedure rule which is the equivalent of a debate in the court of session and they should be allowed to expand their defences with such adjustments which might be considered necessary in due course. Lord Caplan held that the provisions for summary decree were largely aimed at the dilatory defence and that the court was concerned not only to test the relevancy of the defence but to see whether the defenders could present a genuine defence.
Defender must be able to satisfy the court at the time the motion was decided that a proper defence was likely to be available. The defenders had failed to state a plausible defence except in respect of a very small proportion of the sum sued for and summary decree was granted for 108,293.34.
Lord caplan provided helpful explanation of summary decree at 181:
“The summary decree hearing is different from a debate on preliminary pleas where the relevancy of a defence is tested purely on the pleadings. A hearing in a summary decree motion is more far reaching because the Rules of Court specifically admit material extraneous to the pleadings such as affidavits or productions. Thus the court is concerned not only to test the relevancy of the defence but the authenticity of the defence.”
Henderson v Nova Scotia Limited 2005 SC (HL) 85
Went to HL on issue of summary decree.
Involved heritable property - the disposition narrated that the consideration for which it had been granted (248,100) the same individual was involved in the affairs of the company and the appellants and used a variety of names. Including Mr Loo. Some docs are written to and from the same individual acting in different capacities and under different names. After november 2002 the company went into liquidation and 2003 liquidator appointed.
The respondent sought reduction of the disposition on the ground that it presented a gratuitous alienation. The respondent averred that the company had bought the subjects in 1994 and in nov 2002 the hotel and golf courses were valued at a going concern and that the consideration of 248,100 had not been adequate.
The appellants averred that the purchase price represented only part of the consideration and in addition they had assumed 1,850,000 which company owed to loo family. The respondent enrolled a motion for summary decree which was granted. The appellants amended their pleadings and inner house remitted decree to outer house for decision on amended pleadings. The decision for summary decree was granted again. The inner house refused the reclaiming motion. The appellants then appealed to the HL and argued that the sum of 248,100 was significant since the company required to repay 248,000 as part of the loan and that the affairs of the company were restructured etc.
The appellants referred to their written resolution, letters and avidavit from solicitor.
HL held that a judge can grant summary decree if he has satisfied that there is no issue raised by the defender which can be properly resolved only at proof
On the facts clarified in that way Defender has no defence to all, or any part, of the action.
And summary decree is only appropriate when the judge can be properly satisfied on the available material that the defender is bound to fail so there is nothing of relevance to be decided in a proof.
In this particular case the defence has raised an issue or issues which can be properly resolved by a judge who had heard evidence at proof since on the available material the court was unable to say that the appellants would be bound to show that they had assumed liability for the debt as part of the sale of the subjects.
So the appeal was allowed and the court was remitted back to the inner house of the court of session.
Lord rodger indicated:
“The very description ‘summary’ decree indicates that the procedure is intended to be used where the matter can be determined in a summary fashion, without there being any need for a prolonged examination of matters of fact or law.”
McLaughlin v Morrison [2013] CSOH 163
Involved action for damages of £8000 as pursuer averred that his guardee was injured whens standing on a road in glasgow and first defender hit him with his car and in 2011 the first defender was convicted of assault etc. According to the pursuer’s averments mr rennie sustained serious brain injury.
The key points relating to summary decree. Lord jones held:
Second defender was bound to fail in its defence therefore there was nothing of relevance to be decided in a proof
On this basis Summary decree was granted
