K6. Summary disposal of cases or
issues in cases
K6.1. The changes proposed and their
aims
| 299. |
Two major objectives lie beneath the Lord Woolf's proposals
regarding the summary disposal of actions. |
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| 299.1 |
First, he argued that cases which have no real prospects of
success, whether mounted by plaintiff or defendant, should be eliminated at an early
stage. (Note 241) This involves adopting
a lower standard for elimination. Instead of requiring the plaintiff to show that a
defendant has no arguable defence before granting him summary judgment, it should be
enough to show that the defendant has no real prospect of success in his defence. |
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| 299.2 |
Secondly, before the CPR in England and Wales (as is
presently the case in Hong Kong), different rules and standards applied depending on
whether the application was :- |
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(a) |
for setting aside a default judgment (HCR
Order 13, rule 9), |
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(b) |
for summary judgment and determination of a
point of law (HCR Orders 14, 14A and Order 86); or, |
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(c) |
for striking out pleadings for no cause of
action (HCR Order 18, rule 19). |
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| 299.3 |
Lord Woolf favoured a single test - in substance a "no
real prospect of success" test - in all procedural contexts where summary disposal of
the proceedings or any issue in the proceedings may ensue. As his Lordship puts it :- |
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"The test for
making an order would be that the court considered that a party had no realistic prospect
of succeeding at trial on the whole case or on a particular issue. A party seeking to
resist such an order would have to show more than a merely arguable case; it would have to
be one which he had a real prospect of winning. Exceptionally the court could allow a case
or an issue to continue although it did not satisfy this test, if it considered that there
was a public interest in the matter being tried." (Note 242) |
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| 299.4 |
Those were objectives which found support in Victoria (Note 243)
and in Western Australia. (Note 244) |
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| 300. |
Use of these powers were to be facilitated by procedural
enhancements. These are changes :- |
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Allowing the court to initiate the procedure of its own
motion and at any time when reviewing the case. |
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Allowing either party to initiate the procedure from the very
beginning. Thus, a plaintiff can issue an application at the same time as serving his
statement of case and a defendant can do so even before filing a defence. |
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Allowing the court to allow oral or written evidence to be
adduced if adopting that course could dispose of the case more economically than at a full
trial. (Note 245) |
Notes
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