Cyprus Mail
Property

Issue of summary judgment

The procedure for filing of an application for a summary judgment can be adopted in cases where the defendant has no defence and files a memorandum of appearance to delay the process. The claimant can through an affidavit of his or of another person take oath and verify the facts and the cause of the action, as well as the amount claimed and state that according to his belief there is no defence in the action. By doing so he is claiming a judgment for the amount due with interest or for the re-possession of land with or without rents or for the delivery of a certain movable item and the court may issue a judgment to his favour, unless the defendant satisfies the court he has good defence or discloses such facts that are essential, giving him the right to defence. For the claimant to succeed and to obtain a summary judgment he must include in the affidavit all the facts, details and documents supporting his claim, without leaving any room for the defendant to claim that he has a defence.

According to the Rules, the requirements that the claimant must satisfy are the filing of the writ of summons of the action in a specially indorsed form, the defendant to file an appearance and the application for summary judgment to be supported by an affidavit verifying the cause of the action and the sum claimed, as well as the affiant to declare that there is no defence in the action. The court then takes relevant jurisdiction and the burden of proof is moved to the defendant to prove he has a bona fide defence.

A relevant summary judgment was issued on 11.6.2018 by the District Court of Larnaca, which analysed the case-law regarding the issuing of a summary judgment and the court decided that the defendant failed to disclose a bona fide defence to have the right to defend the action. The court referred to case-law where it is stated that a summary judgment can only be issued when the defendant has no defence in the action. However, where the defendant gives enough details in his affidavit showing that he has bona fide defence the court will give him the right to defence. Therefore, only in clear cases the court can deprive a litigant from raising his defence.

The court, examining the evidence adduced by the defendant, observed he did not dispute the amount claimed but argued he was not accountable for the payment, failing to give further explanation or details or to produce any documents supporting his allegation. The Court held that his allegation was unclear, unclarified and totally vague. The defendant did not provide details to a reasonable extent and therefore, he did not satisfy the requirements set out by case-law to secure the right of defence. With reference to case-law, the court added that a summary judgment is not issued where relevant allegations are put forward, which may justify a trial even if the possibility for the defendant to succeed is remote. Where there is a dispute between the parties which must be resolved, the defendant is not deprived of the right to file a defence and possibly a counterclaim, without calculating the possibilities of success and without making any findings outside the trial proceedings. A summary judgment is issued only when the court finds there is in fact no dispute justifying a trial. Such a finding is made when things are obvious and are not the result of evaluation and assessment.

George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288, [email protected], www.coucounislaw.com

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