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What is envisaged is that the master should be given a discretion either to determine
the application on the papers without a hearing (making all necessary orders, including
a summary assessment as to costs if appropriate, discussed below) or to adjourn the
application for an oral hearing before a master or directly before a judge.
To enable the master to decide which course to adopt, he must have before him the
evidence relied on by the applicant and the respondent, the skeleton arguments and
any authorities. From such materials, it ought to be clear in many cases that the matter
can and should be dealt with there and then.
(a)
Thus, it will often be clear that a respondent to an O 14 summons should be
given unconditional leave to defend or that a striking out application should fail.
(b)
Conversely, it may be clear that the matters raised by the defendant provide no
striking out application is misconceived.
(c)
It may also be plain that a default judgment was obtained irregularly and has to
be set aside.
(d)
The papers relevant to an application for further and better particulars or for
leave to amend pleadings frequently enable the master to make up his mind
without hearing oral argument.
These are all examples where oral submissions are most unlikely to add to what is
evident on the papers so that the master can safely deal with the matter there and then.
The master may of course be mistaken. The safeguard against this is an appeal to the
judge in chambers as of right.
However, an unwarranted interlocutory appeal would
be met with appropriate costs and other sanctions. If, on a cursory examination, the
application appears complex or likely to benefit from a hearing, the master should fix
it for a hearing either before a judge or a master without expending further time on the
papers.
Notes
Masters of the High Court presently refer certain interlocutory matters for hearing to the judge in
chambers. Statistics indicate that the interlocutory matters not referred to the judge but which
require a contested hearing before the master number some 250 every month. About 10% of these
are appealed to the judge.
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