As we mentioned in our previous post, there are two forms of proceedings in our civil courts: application (or “motion”) proceedings and action (or “trial”) proceedings. This post is concerned with the latter.
Essentially this form of proceeding is used where there is bound to be a material dispute of fact and it will be necessary to lead evidence to resolve that dispute. The form of process that initiates and embodies a claim in an action is a “summons” which is often supported by a document called “particulars of claim”. The summons is prepared by a “plaintiff” and issued by the clerk or Registrar of the Court (depending on whether you are suing out of the Magistrates Court or the High Court) and delivered to the Sheriff of the Court for formal service on the party being sued, namely the “defendant”. The summons describes the parties and outlines the claim against the defendant and sets out the details of the plaintiff’s attorneys whereas particulars of claim (or the declaration – see below) details the claim and the basic facts underlying the claim.
Once the summons has been served on the defendant, the defendant has either five or ten court days (again dependent on whether the proceedings have been instituted in the Magistrates Court or High Court) to file a notice of intention to defend the action. This notice informs the plaintiff that the defendant is defending the action and sets out the defendant’s attorneys’ contact details. As an aside, both parties must have an address for service of documents within eight kilometres of the Court so if the parties’ attorneys are outside the eight kilometre radius, they must appoint a firm of attorneys within that distance to receive documents. These latter attorneys are referred to as correspondent attorneys and are the agents of the ‘primary’ attorneys.
If the defendant does not file a notice of intention to defend either in time or at all, the defendant is in default and the plaintiff is entitled to apply for default judgment against the defendant. In practice, judgment will probably not be granted against the defendant if the defendant manages to file a notice of intention to defend before the relevant court official attends to the request or application for default judgment. Often a clerk or Registrar is charged with processing requests or applications for default judgment.
Assuming the defendant files a notice of intention to defend, the plaintiff may be entitled to apply for “summary judgment”. This is a procedure that the plaintiff may invoke where the claim is for a “liquidated amount in money”; “the delivery of specified movable property”; ejectment or is based on a “liquid document” (where the amount claimed is evident from the document itself without reference to any further evidence). The plaintiff must further establish that the defendant has filed a notice of intention to defend solely for the purpose of delaying the matter and that the defendant has no “bona fide” defence. If successful, the plaintiff may be awarded judgment at this early stage without having to proceed further with the trial.
We must pause to point out that if a plaintiff issues what is known as a “simple summons” then the procedure changes slightly (this procedure is really only used in the High Court). A simple summons is used in certain circumstances and does not enclose particulars of claim. Rather the plaintiff is required to file a “declaration” if the defendant files a notice of intention to defend in response to a simple summons. The declaration details the plaintiff’s claim in much the same way as particulars of claim.
There are two ways for the defendant to overcome an application for summary judgment: it can put up sufficient security to satisfy the amount claimed or it may file an affidavit setting out its bona fide defence. Summary judgment is not often granted as the Court will not entertain debate about the merits of the defendant’s purportedly “bona fide” defence (if an affidavit is filed) as the preferred course of action would be to have the matter properly ventilated in open court. Of course, if the defendant puts up adequate security, the Court will not grant summary judgment and will similarly order that the matter proceed to trial. This is known as the defendant being granted “leave to defend”.
The next big step is the delivery of the defendant’s “plea”. The plea is the answer to the particulars of claim (or declaration) and sets out the defendant’s defence as well as a possible counter-claim (to which the plaintiff would be afforded an opportunity to respond in the form of a “plea in reconvention”. A plaintiff may also respond to a plea that doesn’t contain a counter-claim with a “replication” where the plaintiff feels it is necessary to address allegations made in the plea.
Once the plea is filed there is usually a delay until after any further pleadings have been filed or the time period for the filing of a further pleading has ended and the pleadings are regarded as closed. At this stage a number of things begin to happen. The sequence of events often vary and the time periods become a little elastic in practice. Some of the steps you can expect are as follows:
- the parties’ legal teams will arrange a pre-trial conference (designed to limit the issues and duration of the trial by reaching agreement on as many issues as possible and even on alternative fora for certain aspects of the dispute);
- discovery notices will be sent out, initiating the discovery process (each party is required to disclose all documentation and information in its possession and which is relevant to the matter at hand and not privileged from disclosure);
- witnesses and experts will be identified and consulted with;
- a trial date will be applied for (either party may apply for a trial date and given delays of a year or more it is often a good idea to apply for a date as soon as possible);
- requests for further particulars are normally sent out closer to trial (these notices call for more information about the plaintiff’s claim and/or the defendant’s plea/counter-claim); and/or
- “interlocutory” applications which may include applications to compel responses to some of the above requests and notices (an interlocutory application differs from the applications discussed in our previous post in that an interlocutory application is a subset of the main action and usually deals with a procedural aspect – service and issuing of these applications are handled differently as well).
Unless the action is settled between the parties, everyone will find themselves in a court room at some point. It can take several years before this happens if trials are postponed or if the court rolls are congested (or both). The usual procedure at a trial is as follows:
- lawyers for both sides will have an opportunity to make opening statements to the court (starting with the plaintiff’s lawyer);
- the plaintiff’s lawyer will lead the plaintiff’s evidence by calling witnesses;
- the defendant’s lawyer gets to cross-examine the plaintiff’s witnesses;
- the plaintiff’s lawyer has an opportunity to revisit the plaintiff’s witnesses’ evidence and deal with issues that the defendant’s lawyer highlighted during cross-examination;
- the process repeats with the defendant’s lawyer leading the defendant’s witnesses’ evidence; the plaintiff’s lawyer cross-examines and the defendant’s lawyer revisits the defendant’s witnesses’ evidence;
- the Magistrate or judge may ask questions along the way;
- once all evidence has been led, each side’s lawyers will present legal argument and closing arguments;
- the Magistrate or judge will consider the evidence led and arguments made and hand down judgment (often some time after the actual hearing).
One of the disadvantages of the trial procedure is that it can take quite a long time to achieve some kind of resolution of the dispute mainly because there seem to be severe delays in being allocated trial dates in many of our courts, particularly the High Courts. These delays tend to frustrate litigants and understandably so. On the other hand, where there has been an injustice or a party has suffered a loss as a result of the wrongful conduct of the other, this may be the only procedure available to address this.