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In a previous article [“What to do if a Judgment is entered against you”]we discussed the steps you could take if a judgment is entered against you. One of those ways in which such a judgment can be entered is by way of summary judgment under Rule 9.6 of the Civil Procedure Rules.

 

This Rule allows a claimant to apply to the court for a judgment after the defendant has filed a defence, if the claimant believes that the defendant has no real prospect of winning in court and that a full trial is unnecessary to resolve the dispute between the parties.

 

If you are the defendant and wish to file a similar application against the claimant then please review the article mentioned above.

 

As the claimant you may file this application at any time prior to a trial date being given by the court once you have been served with the defendant’s defence.

 

Unlike the entry of a default judgment which is granted in the absence of the defendant and does not require proof, the threshold for obtaining summary judgment is higher. You will be required to file sworn evidence supporting the facts you have stated in your claim. Preferably, additional evidence by way of witnesses and/or documentary evidence will go very far in helping the court to make a decision in your favour.

 

Any such application must be filed in Form 15 under the Rules and be accompanied by a sworn statement or statements in support that the facts in the claimant’s claim are true and the claimant believes there is no defence to the claim and giving reasons why he believes so.

 

Remember, it is not enough to just state in your sworn statement that you believe the defendant has no real chance of success. You must be able to prove this.

 

Once you have filed 3 copies of your application with the court you must serve a copy of the documents and all material you intend to rely on, on the defendant immediately. The defendant should be given at least 14 days’ notice of the hearing date. The notice of hearing will usually be served by the court on the defendant, either on his lawyer or on the defendant personally if he is self-represented.

 

The defendant once served should file his own sworn statement in reply setting out the reasons why he has a good defence that can succeed at trial and that statement must be served on the claimant at least 7 days before the hearing. The claimant is then free, but not obligated to file any additional sworn statement and serve the defendant at least 2 days before the hearing date.

 

If you are the defendant and have been served with this application you should have your lawyer or you may, if self-represented, file your sworn evidence that supports your case as soon as possible with the court. You must get the best evidence you have available to use. It would be most beneficial to highlight serious disputes of fact between the parties as this is likely to convince the court not to grant the application.

 

If the court is satisfied that the defendant has no real chance of succeeding at trial and therefore no need for a full trial a judgment will be given for the claimant.

 

If the court is of the opinion that there is a dispute between the parties about a substantial question of fact or a difficult question of law, it will not give a judgment but will rather set the case down for case management conference and it may order that the defendant pay security for costs into court by a stated time or else judgment will be entered if the court’s order is not obeyed.

 

If the claimant wins the application the court will award costs and the claimant may be entitled to claim indemnity costs due to the unnecessary expense the claimant was put to due to the defendant’s baseless defence. Usually an order for costs will be for standard costs.

 

If the defendant succeeds in winning against the claimant then he may also request standard or indemnity costs depending on the circumstances surrounding the filing of the application, e.g. if the claimant was being malicious in filing the application or knew fully well that he could not succeed on the application as his evidence was weak and could not reach the standard of proof set by the court.

 

Security for costs and indemnity costs will be the subject of another article.

 

As with any court document served on you, please do not ignore. If you do nothing and a judgment is entered it can have devastating consequences for you. So, if you represent yourself get all your information together and make enquiries as to how you are expected to proceed. If you have a lawyer prepare all your material to take to him/her and seek legal advice right away. As with all court proceedings delaying can mean the difference between winning or losing.

 

 

DISCLAIMER – This is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.     

 

If you have any questions or require clarification on the above please contact the writers at vanuatulaw@gmail.comor contact us at website www.pawthelaw.info