IN MANY JURISDICTIONS, the laws governing civil procedure recognize that in some circumstances a plaintiff may apply for judgment without the need to go through a full trial. This process is usually available where (1) the defendant does not file a defence; or (2) there is no dispute – or a court determines that there should be no dispute – about the facts or the evidence that the plaintiff puts forward to support the facts.
This process is called “summary judgment” in common law jurisdictions. As it applies to the second scenario outlined above, the process avoids the need for a lengthy trial to determine the facts through witness statements or discovery (for a discussion about discovery and how it operates in common law jurisdictions, see China Business Law Journal volume 9 issue 6: Discovery). Such a process also avoids the delays and expenses that are associated with a full trial. This article examines the summary judgment process and compares the position in two common law jurisdictions – England and Hong Kong – with the position in mainland China.
COMMON LAW JURISDICTIONS
In England, the law governing applications for summary judgment is contained in Part 24 of the Civil Procedure Rules, which provides as follows:
Scope of this Part
24.1 This Part sets out a procedure by which the court may decide a claim or a particular issue without a trial.
Grounds for summary judgment
24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.
As noted above, there are two grounds on which a court may give summary judgment: (1) there is “no real prospect” of the claim succeeding or being successfully defended; and (2) there is “no other compelling reason why the case or issue should be disposed of at a trial”.
Under rule 24.3, summary judgment against a defendant is available in any type of proceeding subject to certain limited exceptions. These exceptions include proceedings for possession of residential premises against a mortgagor and proceedings for an admiralty claim in rem (this is a claim against a ship, cargo and/or freight).
A common example of an application for summary judgment is where a borrower or debtor has defaulted in the repayment of a loan or a debt and there is no dispute about whether the default has occurred and how much money is owing.
Although a successful application for summary judgment will mean that a trial will not proceed and that evidence will therefore not be considered during the trial, Rule 24.5 provides that the parties may file written evidence with the court for the purpose of the summary judgment hearing itself.
In Hong Kong, Order 14 of the High Court Civil Procedure Rules provides as follows:
1. Application by plaintiff for summary judgment (O. 14, r. 1)
(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.
(2) Subject to paragraph (3) this rule applies to every action begun by writ other than—
(a) an action which includes a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment or seduction,
(b) an action which includes a claim by the plaintiff based on an allegation of fraud, or
(c) an Admiralty action in rem.
As noted above, the relevant ground for summary judgment in Hong Kong is that “the defendant has no defence to a claim”. Like the Civil Procedure Rules in England, Order 14 recognizes exceptions where a summary judgment is not available. There are, however, two exceptions that are different from the exceptions in England (see (2)(a) and (b) above).
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia.