Defendants seldom choose to become involved in litigation, but once they find themselves at the wrong end of what is now called a claim form, they can choose how to proceed. Do they want to defend the claim or should they pay up?
Much litigation is conducted by defendants who secretly accept that they are wholly responsible for the claim but, nevertheless, have no intention of paying anything - just yet. The courts' pre-action protocols, which require putative claimants to embark upon a course of correspondence and meetings with potential defendants, play straight into the hands of those who want to put off the evil day.
The politics of delay have their price. If a claimant is required to pursue its claim through the courts to judgment, the reluctant defendant will have to pay not only the claim with interest, but both the claimant's legal costs and their own.
But that is a big 'if '. Anything could happen between the issue of proceedings and the giving of judgment. The claimant could go broke, get rich beyond caring, or just plain bored. For some defendants, it is worth a few spins of the roulette wheel of litigation if there is a chance that the claim will go away altogether.
In the days before the Civil Procedure Rules (CPR) and the pre-action protocols, claimants with a straightforward, undisputed claim could take a short cut to judgment and avoid the rigmarole of a trial. They could apply to the courts in writing for summary judgment. They would set out their claim in a witness statement and the defendant would have to respond. If the defendant was not able to explain to the court why it disputed the claim and why there should be a trial, the claimant could obtain judgment there and then; end of story.
Summary judgment has found its way into the CPR. So, in theory, the short cut to judgment is just as available now as it was before: but what about in practice?
Some time ago, the construction courts found themselves beleaguered with weighty applications for summary judgment with written evidence running to many lever arch files and two or three days of court time required to establish, in effect, that there was nothing to argue about. Not surprisingly, the courts said this was poor use of their time and that if, as was likely, the application was unsuccessful, there would be a trial anyway.
The so-called short cut served only to increase the overall length and cost of the litigation. As a result, applications for summary judgment became rather frowned upon in the construction courts and were restricted to those cases where someone had ordered something and just refused to pay for it. Unfortunately, despite its many strengths, the Arbitration Act does not provide an obvious route for the equivalent of summary judgment in arbitration.
And then came adjudication - a short cut to judgment if ever there was one. The potential shortcomings of the process that promised quick, cheap justice have been well rehearsed. Suffice to say that quick it may be, but it is not cheap and not necessarily just. And as the definition of what is, or is not, a 'construction contract' as required by the Construction Act becomes ever more limited, the adjudication process is available to a shrinking number of claimants.
The fact remains that sometimes a straightforward claim for work done or materials supplied is met with a wholly fictitious defence: a fact that a well-trained judicial eye would be quick to spot. Nevertheless, it seems that the construction courts may still be reluctant to provide this valuable service, preferring instead to rush the parties to a speedy trial.
A speedy trial is, of course, no cheaper than any other kind of trial. It still requires preparation and is unlikely therefore to be held as speedily as the claimant would like, leaving the defendant with a few opportunities to put a spanner in the works. If this is the case, it would appear that within the capacious tool box of dispute resolution procedures now available to claimants, summary judgment has somehow been lost.