# Summary Judgment ( without consent )  ruled to be unlawful



## Asphyxia (11 Nov 2015)

Dear Readers,

I have good news for those in debt and being pursued through the courts, a very recent decision by the Irish Court of Appeal has deemed summary judgment ( without consent of the debtor ) to be unlawful. 

http://www.thejournal.ie/courts-debtors-banks-2436027-Nov2015/


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## Sarenco (11 Nov 2015)

That looks like a perfectly sensible decision. 

Could you post a link to the ruling?

A summary judgment in this context refers to a judgment for a fixed and agreed amount of money due as a debt where the person owing the money has not answered or entered a defence to the proceedings. In this case, it appears that there was at least a possibility that the defendant was intending to dispute the amount owed or to enter a defence and I am at a loss why the High Court proceeded to judgment in a summary manner in these circumstances without granting the requested adjournment. 

The summary judgment process is intended to allow for undisputed cases to be disposed of in a prompt and expeditious manner - it should never prevent or block a defendant  from entering a bona fide defence to any proceedings.


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## Bronte (11 Nov 2015)

Asphyxia said:


> Dear Readers,
> 
> I have good news for those in debt and being pursued through the courts, a very recent decision by the Irish Court of Appeal has deemed summary judgment ( without consent of the debtor ) to be unlawful.
> 
> http://www.thejournal.ie/courts-debtors-banks-2436027-Nov2015/



That's very intersting Asphyxia, can you possible explain to us why the High court wouldn't originally allow the adjournment (in order for the couple to basically get their arguments together and come back later) if you can?  And does it often happen.  I presume going forward the court will have to allow adjournments so people can present their case.

Does this also mean that those who asked for adjournments and were denied can make appeals now.


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## Asphyxia (11 Nov 2015)

Do not have view of full judgment at this time.


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## Asphyxia (11 Nov 2015)

Sarenco said:


> That looks like a perfectly sensible decision.
> 
> Could you post a link to the ruling?
> 
> ...



Seems like the rules have changed, no mention of bona fide defence, just right to be heard under the Fundamental Charter of Human Rights. (That wishy washy European Law stuff )


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## Sarenco (11 Nov 2015)

Incidentally, that report does not suggest that the Court of Appeal has "deemed summary judgment (without consent of the debtor) to be unlawful" as suggested.  Now, that really would have been newsworthy!


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## Asphyxia (11 Nov 2015)

Have you had sight of the judgment Sarenco ?


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## Sarenco (11 Nov 2015)

Asphyxia said:


> Seems like the rules have changed, no mention of bona fide defence, just right to be heard under the Fundamental Charter of Human Rights. (That wishy washy European Law stuff )



There is no suggestion in that report that any "rules have changed".  Everybody has a constitutional right to be given an adequate opportunity to present their case.


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## Bronte (11 Nov 2015)

Sarenco said:


> Incidentally, that report does not suggest that the Court of Appeal has "deemed summary judgment (without consent of the debtor) to be unlawful" as suggested.  Now, that really would have been newsworthy!



I don't get you can you explain?


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## Sarenco (11 Nov 2015)

Asphyxia said:


> Have you had sight of the judgment Sarenco ?



No.  I've only seen the posted link to the Journal.ie report.  The ruling doesn't appear to have been sufficiently newsworthy for the main stream media outlets.


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## Sarenco (11 Nov 2015)

Bronte said:


> I don't get you can you explain?



Well, if the Court of Appeal really did rule that all summary judgments without the consent of the relevant defendant are unlawful then our entire justice system would grind to a halt.  Every debt recovery case would have to go to a full hearing, even in circumstances where the debt is for an undisputed amount and the defendant does not enter a defence.

The reported ruling appears to have been decided on the much narrower grounds that in this particular case the High Court should not have proceeded to judgment in a summary manner as the Court was on notice that the defendant was considering whether or not to enter a defence to the proceedings.


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## Bronte (11 Nov 2015)

Sarenco said:


> the Court was on notice that the defendant was considering whether or not to enter a defence to the proceedings.



I thought it was more concrete than that, that they were going to defend it but needed time to get their defense in order.


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## Sarenco (11 Nov 2015)

You could well be right - the report is pretty sketchy on the detail.


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## 44brendan (11 Nov 2015)

Why is this case regarded as ground-breaking. The standard rule of law is that any defendant is entitled to their "day in court". I.e. Entitled to enter a defense against a plaintiff's case. most judges are prepared to grant a reasonable adjournment in order to allow the defendants time to prepare their defense. As Sarenco says it appears unusual that no adjournment was allowed in this case and there is no rationale put forward as to why the judge did not permit the adjournment.
However, I doubt if this has become standard practice nor that it will have any real impact on ongoing cases.


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## Brendan Burgess (11 Nov 2015)

Asphyxia said:


> I have good news for those in debt and being pursued through the courts,





Sarenco said:


> There is no suggestion in that report that any "rules have changed". Everybody has a constitutional right to be given an adequate opportunity to present their case.



So the world is not about to end after all...


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## Sophrosyne (12 Nov 2015)

So why did this case have to go to the Court of Appeal?


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## Lone Star (12 Nov 2015)

I have a meeting next week with a barrister and will investigate this judgement and possible implications further.

Meanwhile; would anyone be able to offer opinion on the followingI did try to private message about this but my account won't seem to allow me to send it)

A case brought to the High Court under Summary Judgement, which has been adjourned a number of times by the plaintiff (bank), and then was followed by an Intention to proceed (to plenary) lodged by plaintiff.

On foot of (my) defendant's strong defence and issues raised regarding paperwork being faulty (and a request to strike out proceedings) - the Case was adjourned for papers to be read and considered.

A strike out in Master's court however can be appealed and overturned and thens runs risk of a rubber stamp judgement depending on judge.

1. HOWEVER now with this new judgement in mind: if my case is indeed struck out ... Can the plaintiff appeal it? Or do they NOW have to recommence from start and initiate plenary proceedings ?

2. Is there merit in raising as an issue - the fact that they on the last round lodged an intention to proceed (to plenary) . This seems at odds with first of all going for summary and then mid way through changing their stance to plenary...Master raised this on another case but I didn't fully follow the point and I think he may have taken time to reflect on this point also.

3. Additional defence material has also come to light ... Lodge a new supplemental affidavit or wait ?


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## Sarenco (13 Nov 2015)

Sophrosyne said:


> So why did this case have to go to the Court of Appeal?



Because the High Court erred in entering a summary judgment in circumstances where the borrower intended to dispute the debt.  The case didn't "have" to go to the Court of Appeal but the borrower was perfectly entitled to appeal the decision of the High Court.  That's the way our system works.


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## HelpingHand (2 Dec 2015)

Sarenco said:


> Because the High Court erred in entering a summary judgment in circumstances where the borrower intended to dispute the debt.  The case didn't "have" to go to the Court of Appeal but the borrower was perfectly entitled to appeal the decision of the High Court.  That's the way our system works.



Is there any reason why this Court of Appeal judgement did not find it's way onto the Courts.ie website. I thought this website was meant to publish all judgments and rulings of the High Court, the Court of Appeal and the Supreme Court. Maybe the powers that be do not wish people to view this possible ( floodgate ) ruling and the subject matter of the case !


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## Lone Star (2 Dec 2015)

HelpingHand said:


> Is there any reason why this Court of Appeal judgement did not find it's way onto the Courts.ie website. I thought this website was meant to publish all judgments and rulings of the High Court, the Court of Appeal and the Supreme Court. Maybe the powers that be do not wish people to view this possible ( floodgate ) ruling and the subject matter of the case !



It might just take time (weeks or months) for them to upload it, the judgements don't seem to appear for an amount of time.


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## HelpingHand (2 Dec 2015)

Lone Star said:


> It might just take time (weeks or months) for them to upload it, the judgements don't seem to appear for an amount of time.




Lone Star, judgements are usually posted within a working week or at the most, two weeks. The appeals court do not give out too many judgments, so there should be no real delay. Thanks anyway, I will keep waiting.


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