Introduction:
The mechanism of summary judgment provided in civil procedure as a tool to avoid unnecessary delays in litigation. The application for a summary judgment is an interim application that was provided for in the old Civil Procedure Rules in Order 18, Rule 1. It is the option provided to the Plaintiff to submit an application to the court for the issuance of an order against the Defendant at the initial stages of the trial to avoid delay. With the introduction of the New Civil Procedure Rules, effective from 1 September 2023, the framework for summary judgment has been significantly modernised. This article provides an overview of the old regime, explains the reforms introduced by the New Civil Procedure Rules, and considers their practical implications for litigants.
The Old Framework: Order 18, Rule 1 of the old Civil Procedure Rules
Under the previous Rules, a plaintiff could apply for summary judgment where the writ of summons was specially endorsed in accordance with Order 2, Rule 6, and the defendant had filed a memorandum of appearance. The application required an affidavit verifying the cause of action and confirming that the defendant had no defence.
Essentially Order 18, Rule 1(a), means that:
(a) The plaintiff must satisfy the Court that a specially endorsed writ of summons has been filed (Order 2, Rule 6) and the defendant has filed a memorandum of appearance.
(b) The plaintiff must file an application accompanied by an affidavit from himself or another person who can swear positively to the facts of the case. In his/her affidavit, the plaintiff must verify the cause of action and state that, to the best of his/her knowledge, the defendant has no defence to the claim (see Spyros Stavrinides v. Chekoslovenska Obchondi Banka A.S. [1972] 1 CLR 130).
Failure to satisfy the above conditions deprives the Court of the ability to issue a summary judgment (see Athinoulla Dimitriou v. Bank of Cyprus Ltd (1997) 1 CLR 782).
When and if the above conditions are satisfied, the burden shifts to the defendant to satisfy the Court that s/he has a good defence. Or to disclose facts that are sufficient to provide the defendant with the right to defend his/her claim.
The New Regime: Order 24, Rule 1 of the New Civil Procedure Rules
The New Civil Procedure Rules, which have been in effect since the 1st of September 2023, have altered the framework of the procedure of the filing of an application for summary judgment. The procedure for filing an application for Summary Judgment is regulated by Part 24 of the New Civil Procedure Rules.
According to Order 24, Rule 1 of the New Civil Procedure Rules:
(1) ... the court may decide on a claim or a specific issue without a trial.
(2) The court may issue a summary judgment against the plaintiff or defendant in any type of judicial proceeding.
Below our analysis and initial comments on the provisions that introduce the main changes in relation to the old Rules of Civil Procedure is provided.
Flexibility:
According to the aforementioned Rule the court has jurisdiction to decide without a trial on the entire claim and on specific issues within the claim. If the judgment relates to a part of the claim only for instance liability, the remaining issues would be left to be determined by the original trial procedure (see Zuckerman on Civil Procedure. Principles of Practice. (2021) p. 424).
Broader Scope:
Based on the aforementioned provisions, the New Civil Procedure Rules allow the court to issue a summary judgment against the plaintiff or defendant on the entire claim or on specific issues if the plaintiff has no real prospect of success (CPR 24.2(1)(a)(i)). Similarly, the court may issue a summary judgment for the defendant, dismissing the claim in whole or in part, or striking out the claimant's statement of case.
Res Judicata:
A summary judgment that dismisses the claim creates res judicata, yet res judicata is not created by a summary judgment that struck outthe claimant's statement of case (see Zuckerman on Civil Procedure. Principles of Practice. (2021), p. 424).
Applications Before Appearance:
A significant procedural change is that now the court may grant permission to submit an application for summary judgment before the defendant submits a memorandum of appearance. Previously, according to the Old Civil Procedure Rules, one of the basic requirements was for the defendant to submit a memorandum of appearance before the plaintiff could apply for summary judgment. However, according to the new CPR 24.3(1) the plaintiff cannot apply for summary judgment until the defendant against whom the application is made has submitted a memorandum of appearance, unless the court gives permission.
For example, which allow claimants to apply for summary judgment immediately after the service of the claim form in actions for specific performance of an agreement or for rescission. For an example of court permission see Philips v Avena [2005] EWHC 3333 (Ch), [21]-[23] (see Zuckerman On Civil Procedure. Principles of Practice. (2021), p. 424).
Summary adjudication ordered by the Court:
Furthermore, the court has authority to order summary adjudication. This typically occurs at the allocation stage when the court has reviewed the parties' case statements (see Zuckerman On Civil Procedure. Principles of Practice. (2021), p. 423). If the court decides to proceed with summary adjudication, it will not allocate the case but will instead give the parties 14 days' notice of the hearing and inform them of the issues it proposes to decide upon (CPR 24.3(3)).
Practical Considerations:
Despite the changes introduced by the New Civil Procedure Rules, we are inclined to believe that the issuance of summary judgment should be sparing and used as an exception to the general rule that the court hears both sides of the argument before reaching its decision. The defendant should not be deprived of the opportunity to defend himself unless it is clear that they have no arguable defence. Additionally, a summary judgment should not be issued in case there is a serious dispute as to the facts and the law in the case (see Annual Practice (1958), p. 243).
The issue of a summary judgment should also be considered in light of Article 30 of the Constitution, which provides every litigant with the right of access to the justice and the opportunity during the oral hearing to present their arguments.
Conclusion:
The introduction of Part 24 of the New Civil Procedure Rules represents a substantial step toward streamlining litigation in Cyprus. The reforms offer greater efficiency by empowering courts to resolve unmeritorious claims or defences at an early stage. Nevertheless, practitioners and litigants must remember that summary judgment remains an exceptional procedure, carefully balanced against the constitutional right to a fair hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
