Summary Judgment: How to Avoid a Trial

A lot of energy goes into defending or bringing a legal claim to trial in the Bahamas. But what if your opponent’s case is so weak that it has little prospect of success? Should you still be forced to defend your position by paying lawyers, assembling witness statements and dealing with all the other procedures associated with courtroom litigation? 

In the Bahamas the Rules Of The Supreme Court provide for what’s known as ‘summary judgment’, a procedure that enables a plaintiff to speedily ask the court to dismiss a defence that has no merit. Here we look at what’s involved in getting a summary judgment to avoid a full-blown trial, explain the risks associated with such an application and the hurdles a plaintiff needs to overcome to succeed in an application for summary judgment. 

ParrisWhittaker is a team of award-winning lawyers headquartered in the Bahamas with additional offices in Turks and Caicos and overseas. We specialize in dispute resolution, working hard to find practical and cost-effective solutions to tricky legal disputes. 

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GETTING SUMMARY JUDGMENT IN THE BAHAMAS

In the Bahamas the rules about summary judgment were updated in 2022. Tye new rules make clear that the remedy is available to both defendants and plaintiffs. They also widen the kind of case in which a summary judgment application may be made. 

Rule 15.2 of the Supreme Court Civil Procedure Rules (2022) states the court can make a summary judgment order if it considers that:

• A claimant has no real prospect of succeeding on the claim or the issue; or
• A defendant has no real prospect of successfully defending the claim or the issue

Note also under the 2022 rules the court may order a summary judgment at its own discretion (i.e. even where neither side has applied for one).  

WILL MY SUMMARY JUDGMENT APPLICATION SUCCEED?

The rules about how to get summary judgment might appear fairly straightforward. But an order for summary judgment is never one that judges in the Bahamas will make lightly. After all it flies in the face of natural justice to prevent someone from defending their position in court. As a result, the test for a successful summary judgment application is a high one. 

The English case of Swain v Hillman (2001) has a substantial impact on the way judges here apply the summary judgment test in practice. There the court made clear that a defendant in a summary judgment application doesn’t have to show that he will succeed in a trial. Instead the defendant must demonstrate that there is at least a ‘realistic’ as opposed to ‘fanciful’ possibility that he or she will win if the case goes to trial.

From a Bahamian perspective, Higgs Construction v Roberts (2020) Bahamas Supreme Court is helpful. There the court helpfully emphasised that it is a well-established principle of law that judges ought to be cautious since it is a serious step to give summary judgment. But a plaintiff is nevertheless entitled to summary judgment if the defendant does not have a ‘good’ or ‘viable’ defence to the claim. 

COMMENT

Bahamas Civil Procedure Rules, 2022, including the rules on summary judgment represent an overhaul of the way judges approach civil litigation. The government has indicated that the rules are an attempt to create ‘an entirely new and modern foundation’ for handling commercial disputes. Fundamentally there is a real impetus to reduce legal costs and deal more efficiently with cases that in the court system.

When it comes to summary judgment –  as with any kind of application to the court – it’s difficult to give cast iron guarantees about which way a particular application will go. If you think a summary judgment might work in your case, it’s important to get legal advice before you issue any application. If you fail to get summary judgment you could well end up paying the other side’s legal costs as well as your own. 

CONTACT US 

Our job is to assess your case and advise you on your options, whether that involves court litigation or some form of ADR. Please feel free to reach out to us at ParrisWhittaker for an initial, no-obligation discussion.