Summary Judgements

SUMMARY JUDGMENTS

A. INTRODUCTION

In Malaysia, many fear the prospect of being involved in a legal dispute. Primarily these fears stem from the following factors:  

1. cost (how much is this going to cost me?); 
2. time (how long before I can receive judgment?); and
3. effort (how much effort do I have to spend?). 

However, there are certain types of proceedings where an expedited resolution can be arrived at which substantially limit the time, cost and effort involved in litigation.

This series of articles will explore three of the most common summary proceedings in the practice of litigation, of which are: 

1. Summary Judgment;
2. Striking Out; and
3. Summary disposal on a question of law.

Whereas this installment will focus on Summary Judgement applications. 

B. Summary Judgement

B1. What is a summary judgement application?

In short, it is an expedited process where a litigant can move the court to enter judgement on the premise that the defendant has no legitimate defence. The process is moved by Order 14 of the Rules of Court 2012 and is initiated by a notice of application supported by affidavit.  As such, this process will not involve witnesses or trial.

B2. Underlying philosophy

To understand this process, it is important to first understand the underlying philosophy behind such a process.

1. Pro-Plaintiff (the claiming party)

• The philosophy behind of every summary judgement is succinctly set out in the Supreme court authority of MALAYAN INSURANCE (M) SDN BHD v ASIA HOTEL SDN BHD [1987] 2 MLJ 183 as follows:

  “The underlying philosophy in Order 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed in his judgment where there is not fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. This jurisdiction should only be exercised in very clear cases.”

• The Federal Court case of NATIONAL COMPANY FOR FOREIGN TRADE v KAYU RAYA SDN BHD [1984] 2 MLJ 300 has set out the test to be considered by the Court in deciding whether to allow a summary judgment application, as follows:-

  “We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are: 

1. 1. the defendant must have entered an appearance;
   2. the statement of claim must have been served on the defendant; and
   3. the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. 

If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If, however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him [see Order 14 Rules 3 and 4(1)]”. 

• This is however limited by the fact that the courts must be satisfied that there must be little to no doubt that judgment is due to the Plaintiff as may be seen in Capitol Avenue Development Sdn Bhd v Chaw Chun Ha [2020] 1 LNS 380:

  “[12] The legal principles to be applied in applications for summary judgment are well settled. The power to give summary judgment under Order 14 of the Rules of Court, 2012 is intended only to apply to cases where there is no reasonable doubt that a Plaintiff is entitled to judgment. The Court must be left without any real doubt or uncertainty in this respect.

  [14] It is not enough to show that the defence of the Defendant has weaknesses. In Pertama Malaysia Finance Berhad v. Konrep Services Sdn. Bhd. & 3 ors [1990] 1 CLJ 127, the court held that “the effect of an Order 14 application is to deny a litigant the fundamental right to defend himself in Court. Only if the Court is convinced in its own mind that a Defendant has no defences worthwhile listening to, should he be precluded from defending.”

• In short, the above authorities have clearly stated that plaintiffs are required to satisfy certain conditions before being entitled to summary judgement under Order 14. As mentioned above, plaintiffs also need to establish that there is no reasonable doubt in courts mind.

2. Pro-Defendant (the defending party)

• However, this must be balanced against the fact that such a process would effectively deny the potential Defendant the opportunity to mount a defence as may be seen in PERTAMA MALAYSIA FINANCE BHD. V. KONREP SEVICES SDN. BHD. & ORS [1990] 2 CLJ REP 632:

  “[1] The effect of O. 14 is to deny a litigant the fundamental right to defend himself in Court. Only if the Court is convinced in its own mind that a defendant has no defence worthwhile listening to, should he be precluded from defending. In other circumstances, leave to defend should be given.”

• A prospective defendant may thus raise triable issues to show that an expedited process is ill-suited for a determination as may be seen in BANK NEGARA MALAYSIA V MOHD ISMAIL & ORS [1992] 1 MLJ 400, 408 414:

  “In an application under O 14, the court has to be satisfied on affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. A complete defence need not be shown. The defence set up need only show that there is a triable issue.”

• In short, the relevant authorities are suggesting that the defendant’s right to defence will also be taken into account before deciding whether plaintiff is entitled to summary judgement.

3. Additional substantive considerations

Given that a summary judgment application is proceeded on affidavit evidence, it must be realized here that neither party will effectively be able to present the whole and complete circumstances underlying the case. However, judicial authorities will show that there are means for the courts to parse and filter through cases which are genuinely deserving of summary judgement or otherwise. These include: 

1. Critically analysing conflicting affidavit evidence in determining an application for summary judgment as may be seen in BANK NEGARA MALAYSIA V MOHD ISMAIL & ORS [1992] 1 MLJ 400:

   “In our view, basic to the application of all those legal propositions, is the requirement under O 14 for the court to be satisfied on affidavit evidence that the defence has not only raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. On the treatment of conflict of evidence on affidavits, Lord Diplock speaking in the Privy Council on Eng Mee Yong & Ors v Letchumanan 5 had this to say at p 217:

   Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.

   Although Lord Diplock was dealing with an application for removal of caveat in that particular case, we are of the view that the above principle of law is relevant and applicable in all cases where a judge has to decide a case or matter on affidavit evidence.

   Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute [1992] 1 MLJ 400 at 401 is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application.”

There is some issue or question worth investigating even if a triable issue is not necessarily pointed out by the Defendant, as may be seen in OVERSEAS CHINESE BANKING CORPORATION LTD V. BANHENLY HOLDINGS SDN. BHD. [1993] 2 CLJ 347 :

“[3] Whenever there is an issue or question which ought to be tried or there ought for some other reason be a trial [Miles v Bull [1969] 1QB 258], leave to defend must be given.

As I see it O. 14 r. 3(1) of the Rules of High Court provides for leave to defend to be given in the application for summary judgment where there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial. I have in mind the case Miles v. Bull [1969] 1 QB 258 where Megarry J. said in regard to the last words of the sub-rule that they seemed to him to be very wide and to have special significance where, as in that case, most or all of the relevant facts were under the control of the plaintiff, and the defendant would have to seek to elicit by discovery, interrogatories and cross-examination those which would aid the defendant.

The learned Judge added that if the defendant could not point to a specific issue which ought to be tried but nevertheless satisfied the Court that there were circumstances that ought to be investigated, then those concluding words should be invoked.”

C. Concluding remarks

Summary judgement applications ultimately hinge in a balance between two core questions: 

1. If a Plaintiff is so clearly entitled to judgement, can it be expedited?
2. If a case is expedited, will it come at a cost to the Defendant having his right to be heard (i.e. having the issues ventilated over affidavits vs full trial)?

The core substantive principles as set out above, whilst not an exhaustive list of the entire set of principles nor authorities that govern summary judgment applications, are intended to portray the crux of the question that the courts will have to answer in deciding summary judgment applications.  

Whilst justice delayed is justice denied, justice hurried is justice buried. The courts thus constantly deal with the tricky balance of ensuring justice is achieved. 

For a detailed review of whether your claim is suited for summary judgement or otherwise, it is best to refer the full facts of the claim to a lawyer for advice.