In what circumstances, if any, can claims be disposed of without a full trial?
Where the demand is solely for the recovery of a debt, certain, liquidated and due, not consisting in the performance of an act; or for the eviction of any person from any urban or rural tenement, with or without a claim for ground rent, rent or any other consideration due or by way of damages for any compensation, up to the date of the surrender of the tenement, it shall be lawful for the plaintiff to request in the sworn application that the court gives judgment allowing his demand, without proceeding to trial. In so doing, the plaintiff shall state in his declaration that in his belief there is no defence to the action.
Default judgment may be entered against a defendant if he fails to enter an appearance, or, having entered appearance, he fails to file and serve a defence within the time stipulated under the ROC.
Where a defendant has entered appearance and filed and served a defence, a plaintiff may apply for summary judgment against him on the ground that that defendant has no real defence to the claim, either in whole or in part.
At any stage of the proceedings, the Court may order any pleading or part thereof to be struck out, on grounds that: (a) it discloses no reasonable cause of action or defence; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass of delay the fair trial of the action; or (d) it is otherwise an abuse of process of the Court. The Court may accordingly order the action to be stayed or dismissed, or for judgment to be entered.
The Commercial Procedural Code provides for two types of procedures, which do not suppose a full trial: summary proceedings (uproschennoye proizvodstvo) and writ proceedings (prikaznoye proizvodstvo).
Summary proceedings are inter-partes proceedings which are conducted solely on documents without a hearing. They are available for claims not exceeding RUB 500 000.
Writ proceedings are ex-parte proceedings – the court issues a writ of execution within 10 days after receipt of a claimant’s application and then notifies a debtor. If the debtor files its objections, the writ of execution should be cancelled, and the claimant may initiate ordinary proceedings. Writ proceedings are available for claims not exceeding RUB 400 000.
Litigants are empowered to dispose of the matter at issue in the proceedings at any given time, unless doing so is prohibited or restricted for reasons of general interest or to benefit a third party.
Both parties may agree to submit themselves to mediation or arbitration, thus disposing of the court proceedings, or reach agreements in court or out-of-court settlement procedures.
The claimant may waive its action or right, or abandon the claim. The defendant may acquiesce to or accept all of the plaintiff’s claims.
In civil proceeding, the case may be resolved prior to full trials if the parties reach a settlement and concludes a deed of settlement prior to the issuance of the court decision.
A full trial can be avoided if the parties settle the case amicably during the proceedings, which is often the case in German litigation because judges are required to promote the parties’ efforts to reach a settlement agreement. Sec. 278 (6) ZPO even obliges the judge to schedule a “conciliation hearing” (Güteverhandlung) before the oral hearing starts. Furthermore, German procedural law provides for a number of special proceedings that allow the courts and the parties to dispose of claims without a full trial:
- The plaintiff may initiate a warning procedure for an order for payment (Mahnverfahren). If the debtor does not object to the court’s order within two weeks after service, the order is enforceable. If the debtor raises an objection, upon request of the plaintiff, the matter is referred to the competent court which continues to manage the case in accordance with the general rules (sec. 688 et seq. ZPO).
- The plaintiff can also apply for a provisional judgment (Vorbehaltsurteil) in a documentary process (Urkundsprozess) pursuant to sec. 592 et seq. ZPO, which is available in cases where the claim can be demonstrated and proven based solely on documentary evidence. Objections by the defendant in a documentary process are admissible only if they are supported by documentary evidence. Other means of evidence can be introduced only in the second stage of the proceedings (Nachverfahren).
- Furthermore, the plaintiff can also apply for a judgment by default (Versäumnisurteil) if the defendant does not appear at the oral hearing or does not notify its willingness to defend itself in writing prior to the oral hearing (sec. 331 et seq. ZPO).
Claims can be disposed of without a full trail in several cases, but generally for the following:
a) If the plaintiff does not comply with the requirements of its complaint, even after being warned by the judge to emend the complaint for deficiencies or errors in it (for example, to clarify the names or addresses of the defendants, to exhibit certain documents, to clarify certain facts, etc.)
b) If the Judge orders his Court lacks jurisdiction.
c) If the complaint needs a previous ruling on a different matter before moving forward.
d) If the claim is necessarily related to another claim before a different court.
e) Lack of standing of the Plaintiff.
f) Lack of compliance of the conditions that the claims are subject to.
g) Filing in an inappropriate method/way.
In the Greek system of procedural law the courts cannot dispose off a claim without a full trial.
A claim can be disposed of without a full trial if the Court considers that the defendant has not been validly served or that the claimant is inadmissible or if the Court considers it does not have jurisdiction.
Claims may be disposed of without going through a full trial in various circumstances.
First, either party may apply for a summary judgment under Order 14 of the Rules of the High Court (Cap. 4A). In proceedings commenced by a writ, after the plaintiff serves its statement of claim and the defendant provides notice of its intention to defend, the plaintiff may apply for summary judgment by summons supported by an affidavit arguing that the defendant has no real defence (except as to the amount of damages) to the claim or part of the claim. To oppose the application, the defendant should file an affidavit to show cause. On hearing the plaintiff’s application, the court may either:
- dismiss the application;
- grant a summary judgment if the issues raised by the defendant are ‘inherently unbelievable’ or ‘practically moonshine’; or
- grant the defendant a leave to defend, with or without conditions, if the defendant is able to satisfy the court that there is a triable issue, or that for some other reason there ought to be a trial.
Second, the court may, by its own initiative or on a party’s application, strike out the pleading if it:
- discloses no reasonable cause of action or defence;
- is scandalous, frivolous or vexatious;
- may prejudice, embarrass or delay the fair trial of the action; or
- is otherwise an abuse of the process of the court.
If a party is to apply for a strike out, it must do so before the close of the pleadings. Accordingly, the proceedings may be suspended or dismissed, and judgment is entered on that basis.
Third, Order 14A of Cap. 4A provides a mechanism to dispose of a case on a point of law or construction of any document upon the court’s own motion or a party’s application, if such determination will finally determine the entire cause. Upon such determination the court may dismiss the cause or make such order or judgment as it thinks just.
Fourth, a default judgment may be granted at an early stage of the proceedings if the defendant fails to give notice of its intention to defend or fails to serve a defence within the prescribed time limit.
Finally, an action may be dismissed due to a party’s failure to comply with the rules or order of the court or a party’s conduct that amounts to an abuse of process or makes a fair trial impossible.
According to the Italian Code of Civil Procedure, some claims can be settled without a full trial.
In particular, as provided by Article 633 et seq. of the Code of Civil Procedure, at the request of the creditor of a determined sum of money (or of a certain quantity of fungible goods, or at the request of the person entitled to the delivery of a particular movable thing), the competent judge can issue – in general – an order to pay or deliver (in the form of a decree) if written evidence of the claimed right is provided. The decree becomes enforceable if the debtor does not challenge it within the term of 40 days from the service, thus starting ordinary proceedings. The decree is declared provisionally enforceable if the claim is based either on a credit instrument or on an act received from a notary public or another public official, as well as if there is a risk of serious prejudice due to the delay or if the debtor has recognized his debt in writing.
Moreover, Article 702 bis of the Italian Code of Civil Procedure provides for a summary trial, which can be started in cases where the court sits as a single judge and the taking of evidence process appears simple and swift to carry out. The judge provides in the most appropriate manner for the acquisition of the relevant means of proof, omitting any formality that is not essential to the proceedings.
In many instances, commercial claims are compromised between the parties before a full trial. The rules of the Commercial Court encourage parties to engage with a view to reaching a resolution by providing that a judge of the Commercial Court may, of his own motion after hearing the parties or on the application of one of the parties, adjourn a case to allow the parties time to consider whether the proceedings ought to be referred to mediation, conciliation or arbitration.
Where a plaintiff delays considerably in progressing proceedings, a defendant may apply to have the claim struck out for want of prosecution and/or on the grounds of delay. The courts will consider the actions of the plaintiff(s) and defendant(s) in deciding whether to exercise its jurisdiction in this regard. Traditionally, the courts are slow to strike out unless a considerable period of time has passed and it can be demonstrated that some prejudice arises by reason of the delay. The courts also have jurisdiction to strike out a claim on the grounds that the claim is frivolous or vexatious, or that it does not disclose any reasonable cause of action. Whether or not such application is acceded to will very much depend on the particular facts of the case.
The parties may terminate a pending proceeding at any time by acknowledging or withdrawing the action or by a settlement (which then also regulates the cost consequences of the proceeding) with legal effect (res iudicata). Furthermore, proceedings are written off as closed when they become baseless (in the event that the subject matter of the dispute or the interest in legal protection ceases to exist). In this case, the consequences of the costs shall be regulated in accordance with the parties' responsibility for the case becoming baseless.
Claims can be disposed of without a full trial in several ways, among others:
a) Conciliation (Conciliación): In first instance, after the statement of defense, the judge may call the parties to a conciliation hearing and propose them bases of settlement. In practice, judges never act proactively suggesting basis for an agreement. In fact, this hearing is just a formality. However, a claim may be withdrawn as a result of an agreement reached –and pursued- by the parties during this conciliation period (or even at anytime);
b) Agreement (Avenimiento): settlement reached by the parties without an active intervention of the judge;
c) Withdrawal of the claim;
d) Abandonment of the proceeding after 6 months without any relevant procedural act;
e) Transaction: by celebrating a contract in which parties agreed a pending litigation (or prevent an eventual one) by making reciprocal concessions in an extrajudicial way (signing a public deed).
f) Existence of an arbitration clause and the recognition by a judge of the arbitration jurisdiction (claimed by one of he parties).
Claims can be disposed of pre-trial in several ways. There are various procedural impediments such as the court lacking jurisdiction or the claim being time-barred/precluded (res judicata). Procedural impediments shall be considered ex officio by the court unless specifically regulated otherwise. Other methods of disposing a claim are, inter alia;
- if the parties reach a settlement and request court confirmation of the settlement in an award;
- if the defendant concedes the claim;
- if the claim is manifestly unfounded; or
- by default award (which applies inter alia where the defendant is served but fails to lodge a statement of defence).
A claim may be disposed of without a full trial if to the Court considers it as notoriously inadmissible or unfounded or, in circumstances where a procedural or legal court impediment is revealed.
In a different scenario, if the plaintiff does not follow the due course of the proceedings as demanded by law, the claim can also be disposed of without a full trial.
There are several instances in which a claim can be closed without a full trial. If the parties reach a settlement, then the claim will be closed. Having said that, settlements can be recorded in the official minutes of hearing in which case the settlement can have the weight of an executive deed. This means that if one of the parties breaches the settlement, the other party may proceed directly to execution.
There are other instances in which the court may close a case without a full trial such as the failure of both parties to attend a court hearing, or the failure of the plaintiff to attend and the defendant requests the court to strike out the case.
If the action remains struck out for 60 days and neither party seeks continuation, it will be deemed a nullity but all rights will be preserved.
There is no summary procedure under Saudi Arabian law.
A case may be summarily dismissed or quashed for various reasons. The most practical bases for summary dismissal in commercial disputes are that there is no legal venue in Norway, that the parties have agreed on arbitration, that the claimant does not have a genuine need to have the claim determined against the defendant or that the claimant does not show up for the main hearing.
Courts may dismiss an action without a full trial pursuant to motion practice. For example, a defendant can make a motion on the pleadings seeking to dismiss for failure to plead a claim adequately in the complaint, or for a procedural defect. Or any party can move for summary judgment, arguing that there are no material facts in dispute such that the court may dismiss the action as a matter of law. As a general matter, motions to dismiss occur early in the case, often before discovery has taken place. Motions for summary judgment tend to be made after discovery is completed.
In addition, courts may dismiss an action under the following circumstances: (1) where the court lacks jurisdiction to hear the claims, (2) for failure to prosecute, including situations where there is a lengthy period of inactivity in a case or where the plaintiff is unprepared for trial or refuses to proceed with trial; and (3) for failure to comply with a court order or rule, including scenarios where there are repeated failures to appear at hearings and depositions.
A court might dismiss a statement of claim ex officio before a hearing on the merits of the case takes place, if the claim lacks the procedural minimum requirements for a trial, such as jurisdiction of the court, the capacity of the parties to sue and be sued and the formal requirements of a statement of claim. Moreover, a defendant may file for an early dismissal, if the claim is already time-barred, inconclusive, or if procedural requirements are missing (i.e. lack of jurisdiction).
If any party fails to file a legal document, such as a statement of defense, within due time or fails to attend a scheduled hearing, the other party may request the court to issue a default judgment.
A simplified procedure applies with respect to monetary claims up to EUR 75,000 (Mahnverfahren). The plaintiff simply has to fill out a standardized form (as a statement of claim), on the basis of which the court then issues a payment order. The defendant has the choice to either pay the claimed amount or to raise an objection within four weeks of service of the payment order. If the defendant objects in due time, the payment order will be set aside and an ordinary proceeding will be initiated. However, if the defendant does not raise a valid objection, the payment order becomes binding and enforceable (like a final judgment) without any prior hearing on the merits of the case.
Moreover, under certain circumstances, the court may render interim and partial judgments during the course of a main proceeding. Additionally, a proceeding ends without a judgment on the merits if an amicable settlement is reached during an ongoing proceeding.
As described in #4, there are no US-style jury trials for civil proceedings in Japan, although witness examinations are conducted as part of the procedure for intensive hearings. However, it is not rare for the court to decide on the case without conducting witness examinations.
Claims are also often settled in court, and the court may induce the parties to settle anytime during the legal proceedings.
Settlement can be reached out of court as well. In this case, the settlement agreement often includes a clause which obliges the plaintiff to withdraw the litigation, and the claim is then disposed by the plaintiff’s withdrawal.
The court has extensive powers of active case management, enabling it to strike out the whole or part of a statement of case which has no reasonable grounds or is likely to obstruct the just disposal of the proceedings. The court can also give summary judgment against a claimant or defendant where it determines that there is no real prospect of success and there is no other reason the case should go to trial. “Real prospect” is quite a low threshold in practice and has been interpreted to mean that the case is not fanciful.
If the plaintiff does not appear in court or does not submit pleadings when requested to by the court the case will be dismissed, meaning that there will be no judicial judgment. The plaintiff may resubmit the claim. If the defendant does not appear or does not submit pleadings when requested by the court a judgement by default will be entered. The judgment by default can be requested continued within a short time limit (two weeks) after the judgement was handed down.
Parties may raise procedural objections (e.g. lack of jurisdiction – which must be raised in limine litis, i.e. before any arguments on the merits – inadmissibility or procedural irregularity) before their defence on the merits. A preliminary hearing on these issues can be requested before arguments on the merits are examined, which may allow those claims to be disposed of at a preliminary stage.
However, the court may decide that the procedural issues and the arguments on the merits of the case will be examined together.
Under Order XXXVII of the Code, summary proceedings may be initiated by the plaintiff for suits concerning monetary claims upon negotiable instruments, recovery of debt, etc.
In respect of commercial disputes of a specified value, Order XIIIA of the Code (as inserted by the Commercial Courts Act) states that a party may file an application for summary judgment any time after summons has been served on the defendant but before the Court has framed issues in respect of the suit. However, it is also provided that such an application cannot be made if a suit in respect of any commercial dispute has been originally filed as a summary suit under Order XXXVII of the Code. It is further provided that the court may give a summary judgment against a plaintiff or defendant on a claim if it considers that:
a) the plaintiff has no real prospect of succeeding in the claim or the defendant has no real prospect of successfully defending the claim; and
b) there is no other compelling reason why the claim should not be disposed of before recording oral evidence.
Further, as per Order XVA of the Code (as inserted by the Commercial Courts Act), the court may also, in a case management hearing, dismiss or give judgment on a claim after a decision on a preliminary issue.
Additionally, the plaint filed by the plaintiff may also be returned/rejected at the initial stage under the provisions of Order VII Rule 10 (return of plaint) and Order VII Rule 11 (rejection of plaint).
In arbitration proceedings, Section 29B provides that the parties to arbitration agreement may agree to have their disputes resolved by the fast track procedure, wherein the dispute may be decided solely on the basis of written pleadings, documents and submissions filed by the parties without any oral hearing.