The application for Summary Judgment is an interim application where the plaintiff can request the Court to proceed with a summary judgment against the defendant in order to avoid any delay. However, this application cannot be used for every case and there are specific conditions that must be met in order for the Court to proceed with the Summary Judgment.
The application for summary decision is provided under the Civil Procedure Rules Order 18 Rule 1.
The plaintiff must satisfy the Court that a specially endorsed summons was filed and the defendant filed a notice of appearance. He must also accompany his application with an affidavit from himself or from another person who can be positively identified as to the facts of the case. According to the case Stavrinidis v. Chekoslovenska Obchondi Banka A.S. [1972] 1 AAΔ 130 in his affidavit, the plaintiff should verify the right of action and state that to the best of his knowledge, the defendant has no defense to the action. In the event that he Failure to fulfill the above conditions according to the case Athinoullas Dimitriou v. Bank of Cyprus Ltd [1997] 1 A.A.D. 782 deprives the Court of the jurisdiction to issue a summary judgment.
When and if the above conditions are satisfied, the burden of proof shifts to the defendant to satisfy the Court that he has a good defense or to disclose such facts as are sufficient to entitle him to defend in the action.
The special nature of the application for summary judgment was highlighted by the Supreme Court in Trans Middle East Trading Ltd v. Abdul Aziz Tlais (1991) 1 AAD 239, where the following are mentioned among others: that the basic principle emerging from both the Cypriot and English decisions is that summary judgment should be issued only where it is beyond doubt that the Defendant has no defense to the action. But where he gives in his Affidavit sufficient particulars to show the existence of a bona fide defence, or to raise an issue in answer to the demand which should be tried, or where he satisfies the Court that he has a good and substantial defence, or discloses such facts as may be adjudged to be sufficient to entitle him to raise his defence, then such right of defense must be given.
The plaintiff’s obligation to satisfy with his affidavit the conditions of Order 18 Rule 1(a), must be examined strictly and with absolute meticulousness. The decision of
Athinoullas Dimitriou v. Bank of Cyprus Ltd (1997) 1 A.A.D. is relevant, in which the following passage from the English decision Simon and Co v. was cited at Palmers Store (1912) 1 KB 259,
“Trial as a rule must precede judgment. Order 14 provides an extraordinary procedure in certain cases; it is a procedure in which, instead of trial first and then judgment, there is judgment at once and never any trial such as procedure must be strictly confined to the specific cases for which it is provided, as set forth in the order”
Summary judgment should be given very sparingly and as an exception to the basic rule that the Court hears both sides before reaching its verdict. The defendant should not be prevented from defending except in cases where it is beyond doubt that he has no arguable defense. Nor is summary judgment granted where there is a serious disagreement as to the facts and the Law. The fact that the Court should be particularly careful in issuing summary judgment should also be seen in the light of the provisions of Article 30 of the Constitution where it is defined that each party has the right to appeal to the Court and also to be given the right to contexts of the hearing to present his positions and arguments.
The Summary Judgement is a very powerful weapon in the hand of the plaintiff and it can be used precisely and wisely in cases where the defendant has no defense.
The above article is purely informative in nature and in no way constitutes legal advice or opinion regarding the process of the application of the Summary Judgement. Our law firm undertakes cases, provides specialized advice, and is able to represent clients in all Districts of the Republic of Cyprus. You can reach us by calling +357 24 727313 or sending an email to [email protected].
