Time, they say is money; and this aphorism of commerce has been acknowledged by the Courts in Ghana. To address complaints by litigants about delays and the waste of productive hours in long drawn-out litigation, the rules of court allow parties in a lawsuit to choose more expeditious procedures, under the right circumstances.

These short cuts could however turn into lengthy labyrinths if not managed properly.

This article discusses some of the expedited litigation procedures in Ghana and how these options, albeit well intended, do not always produce the desired results. The article also draws the attention of potential litigants to some of the unintended consequences of these expedited litigation procedures.

The Summary Judgment

Summary Judgments allow for an early resolution of a matter when there is no real dispute on the facts or law, thereby avoiding a full trial.

This rule is designed to allow a party who has initiated a lawsuit to obtain judgment without a trial by filing a Motion for Summary Judgment and demonstrating to the Court that the Defendant has no reasonable defence to the claim (or a part of the claim to which the Motion relates). It must be noted however that, a Defendant on whom a Motion for Summary Judgment has been served is at liberty to oppose the Motion for Summary Judgment by also demonstrating to the satisfaction of the Court that he/she has a good defence to the lawsuit (or the part of the lawsuit to which the Motion relates).

If the Motion for Summary Judgment is refused, the Court may grant the Defendant permission to file a Statement of Defence for the case to take its normal course to the trial stage.

Even when the Motion for Summary Judgment is granted in respect of a part of the claim, the Court may order that the execution of the judgment be deferred until after the trial of the other part of the claim or any counterclaim raised by the Defendant has been dealt with.

It must however be noted that, a Defendant against whom a Summary Judgment has been granted may apply to set aside or vary the Summary Judgment if the Defendant was absent at the hearing of the Motion within fourteen days of being notified of the Summary Judgment.

The Default Judgment

Default Judgments are designed to ensure compliance with the procedural deadlines for key steps in the litigation process such as entry of appearance or the filing of a statement of defence and a counterclaim as the case may be.

If a party fails to comply with procedural deadlines, the court could grant default judgment without proceeding to trial.

The drawback of this shortcut is that since the courts are keen on having cases determined on their merits instead of technicalities, a party against whom default judgment is granted may apply to set aside the default judgment for the case to take its normal course subject to payment of cost to the affected party. This reverses all the time saved and puts the case back on its regular track, to follow the standard court procedures.

Striking Out Pleadings

The Court may either on its own or on the application of a party strike out another party’s pleadings if the pleadings

1. disclose no reasonable cause of action or defence;
2. are scandalous, frivolous or vexatious
3. seek to prejudice, embarrass and delay the fair trial of the action; or
4. are an abuse of the process of the Court.

Where an entire Statement of Claim is struck out for instance, the lawsuit may terminate immediately. Striking out portions of pleadings found to be frivolous or irrelevant, also removes immaterial facts from the case, narrows the issues and enables the trial to focus on the relevant issues only. This considerably reduces the complexity of the case and length of the trial.

Unfortunately, taking advantage of this shortcut could result in the affected party filing an appeal against the ruling striking out the pleadings and the pursuit of the appeal could lead to delays in the resolution of the case. A party whose pleadings have been struck out may also file an application to restore the pleadings in accordance with the rules.

Interrogatories

A party may request the permission of the Court to serve on the other party in the suit, questions relating to the case and ask that party to answer those questions. Non-compliance by a party on whom Interrogatories are served may, in the case of a plaintiff, result in the action being dismissed, or, in the case of a defendant, the defence being struck out.

The responses to the questions asked may substantially clarify and narrow the issues in dispute and enable the trial to be focused on relevant issues only. Fewer issues generally translate to a less complex case and a shorter trial. The trial may be avoided altogether if an admission is made that triggers a judgment to be obtained on admission.

On the other hand, a party seeking to delay proceedings may either file frivolous questions or refuse to respond to the questions on grounds of privilege. Also, where the responses do not sufficiently answer the Interrogatories, the Court may make orders requiring the party to furnish additional responses either by affidavit or on oral examination. Consequently, significant time maybe spent at the Interrogatories stage only for the matter to later take its normal course.

The Judgment on Admissions

A party may serve on the other party in the lawsuit, a request to admit the truth of a fact or the authenticity of a document. The party on whom the request is served must specifically admit or deny the truth of the fact or the authenticity of a document mentioned in the request.

Where a party admits the truth of certain facts or the authenticity of documents, it clarifies and narrows the issues in dispute and reduces the scope of the trial, which significantly shortens it.

The downside of this procedure however is that where the facts admitted to, do not dispose of the matter, time would have been wasted on the request.

In addition, admission by a party to a fact is not conclusive as that party may subsequently withdraw the admission either with the Court’s permission or with the consent of the other party. The decision to withdraw an admission may also be the basis for substantial delays especially where the withdrawal is contested.

The Pre-Trial Settlement Conference

For commercial disputes, the rules of the Commercial Court require parties to attend a mandatory Pre-Trial Settlement Conference within a period of thirty days after the close of pleadings. The Pre-Trial Settlement Conference is essentially a court assisted alternative dispute resolution process presided over by a judge who affords the parties an opportunity to settle their disputes without going to trial. Pre-Trial Settlement Conferences are designed to settle cases or clarify the issues before trial, potentially resolving the case early or simplifying the trial process. The pre-trial judge may encourage settlement or issue directions to streamline the proceedings, making the eventual trial quicker. It is noteworthy that the pre-trial judge does not conduct the main trial.

There are instances where parties exploit the pre-trial process by feigning cooperation—requesting extension of time or engaging in drawn-out negotiations—not with the aim of resolution, but rather to intentionally delay the commencement of trial.

 The Offer to Settle

In the course of proceedings before the Court, offers for settlement may be made by a party for the consideration of the other party. Court-connected alternative dispute resolution may also be an option for the parties to explore to expedite the resolution of their disputes.

Offers to settle cases encourage early negotiations and resolutions outside of court and if an offer is accepted, the case may be concluded without a trial. In practice, the parties may agree to resolve the dispute amicably, in which case the agreed terms are reduced into writing, signed by the parties, and filed in court. To conclusively end the case, the Court must adopt the filed terms of settlement as consent judgement and strike out the case as settled.

The courts in Ghana are usually supportive of parties settling their disputes outside the courtroom. But this goodwill can be exploited when a litigant pretends to pursue the settlement, simply to buy time and stall the progress of the case. Another common tactic is the use of poorly drafted settlement terms. Bad drafting, especially of key clauses, can act as a Trojan horse which conceal potential new disputes that surface during the execution of the consent judgment. Parties must ensure that the terms of settlement  reflect exactly what the parties intended.

Conclusion

It is ironic that the very rules designed to expedite litigation can, in the hands of mischievous litigants, be manipulated to achieve the opposite effect. Lawyers and litigants alike must remain vigilant to such tactics and take proactive measures to prevent avoidable delays along the litigation express way.