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Appearance having been entered, the next step is taken by the plaintiff. He issues either a summons for summary judgment or a summons for di rections. A summons for judgment can only be issued, properly speaking, where the action is brought for a liquidated sum, e.g., for money lent, the amount due, or for a cheque or bill of exchange, or where an action is brought by a landlord to recover possession from a tenant whose term has expired or has been duly determined by notice to quit. In all these cases the application must be supported by an affidavit to the effect that the money, etc., is due, and that, in the belief of the plaintiff there is no defence. If the defendant does not appear, or if he appears and shows no cause to the contrary, judgment will be given forth with by the master in chambers. Where, however, the defendant appears in answer to the summons and shows by affidavit or other wise that he has a defence, going to the whole cause of action, leave to defend will be given, and the master will then give directions as to the further conduct of the suit. Sometimes it will appear that the defendant has no answer to part of the claim. In that case the master generally orders payment to the plaintiff's solicitors in a certain time, or judgment in default, and gives directions as to the balance. In rare cases the master will order some part of the money sought to be recovered to be brought into court as a condition of leave to defend. But a plaintiff ought not to proceed for summary judgment unless he has substantial grounds for believing there is no defence to the action. Should it turn out that there is a defence of which he must, or ought to, have known, he runs the risk of having to pay the costs.
This (which has just been described) is the celebrated pro cedure under Order 14. Unknown to the public, and to a large section of the legal profession, enormous sums of money change hands each year in consequence of orders made by masters in chambers. The successful plaintiff receives a fixed sum for costs, the amount of which varies according to the amount of the claim. Claims for i2o and over may be prosecuted in this way. In its essence, this procedure, which allows a litigant to defend himself only when he swears to a defence, is a survival from ancient times when it was competent for a plaintiff to cause his debtor to be imprisoned unless he could show a defence. Consequently the court always takes a lenient view of any defence which may be put forward, acting on the principle that if the defendant swears to that which, if true, would constitute a de fence, he must not be precluded from putting his case before the court.
Having decided to give leave to defend, the next duty of the master is to say how the case shall be tried. If the issue is clear and simple he has power to send it for trial into the short cause list. In that case it is set down for trial without pleadings, and it comes on for trial before a judge alone in a very short space of time. Where, however, service issues are raised necessitating an order for discovery and pleadings, directions are given pro viding for those matters and settling the place of trial—whether in London or at assizes. If the amount is under lioo, however, the case is generally remitted for trial in the county court, the costs being left to the county court judge. If it involves a technical or scientific enquiry, or the examination of accounts, the master may send it to an official referee. Finally, if the parties agree, he may order it to be tried before a master, who fixes a time and day and hears the whole case with witnesses.
His decision on a reference of this kind is subject to an appeal to a divisional court.
From the decision of a master on a summons for judgment, an appeal lies to the judge in chambers, who may reverse or vary the master's order. It not infrequently happens that the party who is unsuccessful before the master carries in fresh evidence before the judge in chambers. From the judge an appeal lies (with leave) to the court of appeal, subject to this, that where the judge has given unconditional leave to defend, there is no further appeal of any kind.
In all other cases commenced by writ and subject to an exception to be presently mentioned, the plaintiff in every action must take out a summons for directions. After the defendant has appeared, and before taking any fresh step in the action, other than applying for an injunction as re ceiver, or the entering of judgment in default of defence (0. 3o, r. 1, [a] and [b]). In so far as it is compulsory, this rule does not apply to admiralty actions, nor to an action where the writ is specially indorsed, nor to any proceeding commenced by originat ing summons (0. 3o, r. I [a]). The plaintiff must issue the sum mons within 14 days of the defendant's appearance, and if he does not do so, the defendant may apply to dismiss the action for want of prosecution. On the hearing of that application, however, the master may give direction (0. 3o, r. 8).
The master generally deals in the first instance with the fol lowing matters : pleadings, discovery, and place and mode of trial. Either party may make application under it to the master on two days' notice for further directions, and every interlocutory application in an action which has to be made before judgment is so made (0. 3o, r. 5). Even an application for leave to discon tinue proceedings is so made.
Generally speaking, the effect of the order made on the appli cation for directions is to set the case on its career through the courts.
All persons may be joined in one action as plain tiffs in whom any right to relief arising out of the same transac tion is alleged to exist, whether jointly or severally, or in the alternative where, if such persons brought suit separately, a com mon question of law or fact would arise (0. 16, r. t). Should it appear, however, that any such joinder may embarrass or delay the trial, separate trials may be ordered (ib.). Again, if an action is by accident brought by the wrong plaintiff a new plaintiff may be substituted or added (0. 16, r. 2). As regards defendant, all persons may be joined as such against whom the right to any relief is alleged to exist, whether jointly or severally or in the alternative (0. 16, r. 4). If numerous persons having the same interest in the cause or matter desire to assert or defend their rights, the court may authorize one or more of them to represent all (0. 16, r. 9). As a corollary to the above rules it is important to notice that the court has ample power to strike out parties improperly joined, and to add others who should be before the court in order that the matters in dispute may be effectually de termined (0. 16, r. I t). As regards lunatics and infants the rules are strict to prevent anything in the nature of a settlement or compromise of an action save with the consent of the court or a judge. Money recovered by an infant or lunatic may be kept in court or otherwise protected for the benefit of the party concerned.