 |  |
|
 |
 |
 |
 |
|  | |  | |
10.3
Undesirable differences
If, on the other hand, one assumes that the tests really do differ and that the new test
would in practice lower the threshold
make it easier
to obtain summary judgment
or to strike out a claim or defence, a number of those responding argued that such a
development would be undesirable. The concerns, some of which were mentioned in
the Interim Report,
include the following :-
(a)
Injustice could result. A lower threshold might encourage a judge to be too
robust in condemning a claim or defence when he is not properly in a position
to form a definitive view of the merits. Cases that look weak on the pleadings
may take on a very different complexion at the trial, after discovery and cross-
examination of the witnesses.
(b)
The lower threshold may lead to the proliferation of speculative or ill-judged
summary judgment or striking out applications, resulting in delays and wasted
costs.
(c)
A more robust disposal of cases may stultify development of the law.
(d)
Giving the judge greater scope for summarily disposing of claims or defences is
likely to magnify the subjectivity inherent in such decisions, resulting in a
greater risk of judicial inconsistency.
Notes
At §312.
|
 |
|