The Master of the High Court has recently highlighted the obstacles facing lay litigants in ‘fast-track’ procedures
THE MASTER of the High Court, Edmund Honohan, recently removed a case from the “fast track” list where summary judgments are sought, and entered it for a full hearing before a judge.
The Master of the High Court manages the High Court list and sends cases forward for full hearing.
The case had been brought by AIB, which sought summary judgment against a man who had taken out two loans which he was now unable to repay. He argued that the bank knew he would be unable to repay the second loan, and that it had engaged in “reckless lending”.
Mr Honohan acknowledged the man may fail to make an “arguable” case and be refused leave to defend the case when it comes up for hearing, but refused to grant the summary judgment.
This decision came at the end of a 39-page ruling in which he examined at length the process whereby summary judgments are sought by creditors, often against lay defendants, and concluded that this could infringe the European Convention on Human Rights.
Pointing out that under the Rules of the Superior Courts defendants must obtain “leave to defend” in cases where summary judgment is sought, he said: “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.” A refusal of “leave to defend” can only be appealed to the Supreme Court, he pointed out.
The Monday morning list, managed by the Master, is composed of different types of motion, including “Motions for liberty to enter final judgment”.
If granted, these 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,” Mr Honohan said. “Lose on a Monday and the defendant has lost his case.”
This fast-track procedure could jeopardise some defendants’ rights to a fair hearing, he said, by creating a plaintiff-friendly process.
Describing what happens from a defendant’s point of view, he said the summary summons appeared to state the Chief Justice required him to enter an appearance in the Central Office.
“After he has found out what an ‘appearance’ is , the defendant dates and signs a pre-printed form and confirms that ‘the said defendant requires delivery of a Statement of Claim’.
“He then waits for ‘delivery of a Statement of Claim’, but none arrives. Nor is he given ‘due notice of the day and hour of the hearing of the summons’. Instead he gets a ‘Notice of Motion’ which announces that the plaintiff will apply to the Master of the High Court for ‘liberty’ to ‘enter final judgment for the amount claimed’.”
He pointed out it is not stated that he will not be able to give evidence when he arrives for this hearing, which he is entitled to think will be the hearing of the case. Instead, he should prepare a written statement of the evidence he would like to give (when the case is actually heard) in the form of a sworn “affidavit” of evidence. He arrives in court without it.
Once there, he discovers the Master’s court is not a real court, and the case is not going to be “heard” that day at all. If he is lucky, the Master will suggest to him that he should probably ask for an adjournment to give him time to prepare, swear, stamp, file and deliver a replying affidavit, and may even tell him what it is.
On the other hand, the Master may decide that as there is no replying affidavit from the defendant, he has not “contested” the plaintiffs case and give the plaintiff (normally the lender) the order he is seeking, so concluding the case.
Noeline Blackwell, director of the Free Legal Advice Centres (Flac), agreed the system is tilted against a lay litigant who may not understand the complex court procedures. “Procedures which are only peripheral to the case can be an obstacle. It’s a real problem,” she said.
“There is no joined-up thinking. It should be possible to draw everybody together to analyse all the bits of the system and see how it can be improved so that the courts are more accessible to people who want to be or are forced to be lay litigants.”
She pointed out this problem had been recognised in England and Wales, where the Civil Justice Council of the judiciary had prepared a report on improving access to justice for those without legal representation, setting out a range of practical recommendations to address their problems.
Among its proposals are early advice on the merits of a case; improvements to guidance available to litigants; lawyers for other parties and court staff to help them assist litigants, and concerted leadership to drive collaboration between advice agencies and pro bono initiatives, including freeing up in-house lawyers to provide pro bono services.
Such an initiative should take place here, she said.