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Civil Lit > 10 > Flashcards

10 Flashcards

1
Q

DEFAULT JUDGMENT

In undefended cases C can enter default judgment if:-

A

(a) D fails to file either an A/S or a Defence within 14 days of PoC.
(b) If D files an A/S admitting the claim
(c) If D files an A/S stating an intention to defend, but fails to file a Defence within 28 days of deemed date of service of the PoC.

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2
Q

What is the procedure for DEFAULT JUDGMENT in money claims?

A

C enters default judgment by filing a REQUEST for judgment.

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3
Q

What is the procedure for DEFAULT JUDGMENT in equitable relief?

A

abandons equitable relief + REQUESTS default judgment on any money claim.

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4
Q

Money claim where default judgment requires an APPLICATION

In what situations?

A
  1. Claims against children + protected persons
  2. Tort claims by one spouse or civil partner against the other
  3. CF served outside jurisdiction without permission
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5
Q

A claimant can enter default judgment when:

A
  1. Defendant has not filed A/s or defence, and 14 days, have expired since the service of PoC; or
  2. Defendant has filed A/S, but has not filed a defence, and 28 days have expired since service of PoC.
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6
Q

How many days can be extended to prevent default judgment?

A

14 + 28 days can be extended by agreement or court order for period of 28 days, making max by agreement 56 days.

Final judgment are claims for specified sums.

Judgment for damages = unspecified sums.

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7
Q

DEFAULT JUDGEMENT NOT AVAILABLE

C NOT allowed default judgment if –

A

(a) (i) D applied to strike out C’s case
(a) (ii) D applied for summary judgment
(b) D paid the whole claim
(c) In a money claim D has filed an admission with a request for time to pay
(d) Part 8 claims

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8
Q

In non-money claisms, how to get default judgment?

A

Non-money claims = DJ = APPLY for

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9
Q

Default judgment = unspecified sum

A

Judgment for an amount to be decided by the court, plus costs.

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10
Q

Default judgment = specified sum of money

Typically judgment is for the whole sum (which is):

A
  • plus interest to date of judgment
  • and costs

C may agree to payment by instalments

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11
Q

Default judgment in claim against more than one D

C MAY obtain a default judgment on request for money or a claim for delivery of goods against one of two or more defendants + proceed with his claim against the other defendants.

1. Where C applies for a default judgment against one of two or more Ds –

(a) if the claim can be dealt with separately from the claim against the other defendants –

A

(i) the court may enter a default judgment against that defendant; and
(ii) the claimant may continue the proceedings against the other defendants;

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12
Q

Default judgment in claim against more than one D

C MAY obtain a default judgment on request for money or a claim for delivery of goods against one of two or more defendants + proceed with his claim against the other defendants.

1. Where C applies for a default judgment against one of two or more Ds –

if the claim CANNOT be dealt with separately from the claim against the other defendants ​:

A

(i) the court will not enter default judgment against that defendant; and
(ii) the court must deal with the application at the same time as it disposes of the claim against the other defendants.

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13
Q

C may NOT enforce against D any judgment obtained under default judgment for possession of land or delivery of goods unless –

A

1) he obtained judgment for possession or delivery against all Ds in claim; or
2) court gives permission

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14
Q

SETTING ASIDE DEFAULT JUDGMENT

Court MUST set aside if judgement wrongly entered because –

A
  1. Essential conditions about failing to acknowledge service or defence, or relevant time having elapsed, are not satisfied
  2. Claim was satisfied before judgment entered;
  3. Defendant already applied for summary judgment or to strike out the claim; or
  4. Defendant had already filed an admission
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15
Q

DEFAULT JUDGMENT

DISCRETIONARY setting aside:

A

Court MAY set aside/ vary judgment if –

  1. D has a real prospect of successfully defending the claim; OR
  2. It appears that is some other good reason why –
    1. Judgment should be set aside/varied; or
    2. D should be allowed to defend the claim.

Court MUST have regard to whether app was made PROMPTLY.

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16
Q

Is having an “arguable” case sufficient?

A

NOT sufficient

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17
Q

In Summary judgment where is the BOP?

A

On the Claimant

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18
Q

In default judgment where is the BOP?

A

Defendant

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19
Q

How can you refuse to set aside a judgment?

A
  • Can refuse to set aside even if D was not given notice of an application to enter judgment.
  • Alleged technical failures by C in entering default judgment may not be enough
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20
Q

Requirements for default judgment?

A

The requirements are:

  1. Defendant must have a real prospect of successfully defending the claim; or
  2. Some other good reason; and
  3. Application made promptly.
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21
Q

Factors taken into account: for default judgment:

A
  1. Promptness of app
  2. “Promptly” = reasonable celerity.
  3. Duty to act promptly is imposed on D personally
  4. Significant delay may be enough for a refusal to set aside even if there is a defence, but not always
  5. Reasons for delay
  6. Whether delay = abuse of process
  7. Whether hearing to asses damages
  8. Prejudice to C

Pre action delay = irrelevant. Failure to provide good reason for delay not always a reason to refuse to set aside.

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22
Q

Procedure for default judgment

A

D issues application notice.

Application MUST be supported by evidence.

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23
Q

SUMMARY JUDGMENT

Where summary judgment is available

The court may give summary judgment against WHOM?

A
  1. against a claimant in any type of proceedings.
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24
Q

For a claiamnt, what type of proceedings is summary judgment allowed?

A

For C – NO EXCLUDED types proceedings.

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25
Q

Where summary judgment NOT AVAILABLE against D:

A
  1. certain residential premises; and
  2. admiralty claims in rem.
26
Q

The court may give summary judgment against a defendant in any type of proceedings except –

A
  1. certain proceedings for possession of residential premises; and
  2. proceedings for an admiralty claim in rem.

May even be brought by the court of its own initiative

27
Q

C may NOT apply for SJ until D filed –

…. UNLESS

A
  1. A/S
  2. Defence

…UNLESS:

  1. Court gives permission; or
  2. PD provides

If Pre-action Protocol NOT complies with = SJ MUST NOT norm be entered before Defence filed/expired. Not just A/S.

28
Q

Postponement for filing Defence =

A

If C applies for SJ against D, D need NOT file a defence before hearing.

29
Q

Can court fix summary judgment of its own hearing?

A

Court may fix summary judgment of own hearing, giving 14days notice

30
Q

What is the procedure for SUMMARY JUDGMENT?

A

APPLICATION NOTICE = N244 app MUST:

  • State app for summary judgment
  • Identifying written evidence
  • MUST include a Notice warning respondent of 7 day rule for serving evidence in response.
31
Q

What service of evidence is required for SUMMARY JUDGMENT?

For APPLICANT

A

Applicant MUST serve N244 and W/S 14 days before hearing.

Applicant MUST file + serve further evidence 3 days before hearing.

Norm heard by Master or District Judge

32
Q

What service of evidence is required for SUMMARY JUDGMENT?

For RESPONDENT

A

Respondent MUST file + serve written evidence 7 days before hearing

33
Q

GROUNDS FOR SUMMARY JUDGMENT

Court MAY give SJ against C or D if –

A
  1. It considers –
    1. C has no real prospect of succeeding OR
    2. D has no real prospect of successfully defending; AND
  2. No other compelling reason why case/issue should be disposed of at trial.

BOP – on Applicant

34
Q

wHAT DOES:

““Real Prospect of Success” =

A

better than “merely arguable”, and “false, fanciful or imaginary”.

SJ is NOT a mini-trial.

The criteria is NOT probability, but absence of reality. Court NOT required to accept assertions made by respondent. A “realistic claim” carries “some degree of conviction” – NOT merely arguable.

35
Q

SUMMARY JUDGMENT

No other compelling reason = examples:

A
  1. C’s case is devious or crafty
  2. C’s case not plain and straightforward
  3. C acted harshly and unconscionably
  4. Where point of construction of standard contract affects lots of people
  5. Serious allegations of bad faith NOT enough
  6. C in liquidation and latent claims and cross-claims between parties
36
Q

SUMMARY JUDGEMENT MAY BE SUITABLE

FOR:

A
  1. Short point of law
  2. Bad in law
37
Q

SUMMARY JUDGEMENT NOT SUITABLE:

A
  1. Complex question of law or fact, or XX necessary
  2. Documents in support are alleged to be forged
  3. Apparently credible versions of facts advanced by both sides
38
Q

If set off has reality, what does this mean?

A

D has a “real prospect of success” up to value of set-off.

39
Q

What happens if a counterclaim does NOT amount to a set-off?

A

Counterclaim NOT amounting to set-off MAY have effect on SJ if counterclaim linked with claim. If D raises “triable counterclaim” which is not a set-off, court MAY grant SJ to C but with a stay of enforcement pending trial of the Counterclaim.

40
Q

What is set-off? EXAMPLES:

A
  1. Mutual debts
  2. Damage for breach of sale of goods implied term against a claim for price
  3. Claim for poor workmanship against a claim for price of the work
  4. Equitable set-off
41
Q

Will the court give effect to right to set off clauses?

A

Excluding right of set-off = contractual clause may provide “no set-of”. Court WILL give effect to such clause.

42
Q

Orders available on summary judgment

A
  1. Judgment on claim
  2. Striking out/dismissing claim
  3. Dismissal of application
  4. Conditional order
43
Q

What is the Cheque rule?

A

CHEQUE RULE = “Cheque rule” = claim for non-payment of cheque or direct debt = court WILL grant summary judgment without taking into account cross-claim or set-off.

44
Q

What are the exceptions to a cheque rule?

A

EXCEPTIONS where SJ MAY be refused on action for non-payment of cheque:

  1. Fraud
  2. Invalidity
  3. Failure of consideration
45
Q

Where CONDITIONAL ORDER appropriate

A
  1. Oral variation of written contract

BUT – if original contract had “no variation” clause = NO defence.

  1. D alleging rescission of loan contract meaning D will have to repay money borrowed from C.
46
Q

What is a

Norm conditional order =

A

D pay money into court within (norm) 14 days. Such payment into court = secured fund – useful if D becomes insolvent.

47
Q

What is :

Procedure where C asks for conditional order

A

C should give D appropriate prior notice, so D can prepare written evidence.

48
Q

CONDITIONAL ORDER:

D unable to pay

A

= BOP on D to establish on balance of probabilities proposed condition would stifle defence. CO NOT appropriate where D finds compliance “impossible”.

49
Q

What is a contiional order?

A

Where POSSIBLE claim or defence may succeed BUT IMPROBABLE – Court MAY make conditional order

50
Q

Conditional order = order requiring party:

A
  1. To pay sum of money into court; or
  2. Take specified step to his claim/defence

And provides that party’s claim WILL be dismissed or SoC struck out if he doesn’t comply.

51
Q

Security for costs as conditional order

A

C with IMPROBABLE CASE, combined with history of breach of court orders MAY be required to provide security for D’s costs, provided it wont stifle C’s case.

52
Q

DIRECTIONS = Where court determines SJ, it MAY –

A
  1. Give directions as to filing and service of defence;
  2. Give further directions about management of case

Where court dismissed the app or makes order not completely disposing of claim, court WILL give case management directions as to future conduct of case.

53
Q

IMPLIED SANCTIONS DOCTRINE

Is setting aside an application for relief?

A

Setting aside IS an application for relief from sanctions. So 3-stage Denton test under r3.9 MUST be met.

54
Q

WHat are the stages of Denton v White?

A
  • Court MUST consider the express requirements for setting aside
  • Then 3 stages of Denton v TH White
    • Seriousness or significance of the breach
    • Reasons for the default
    • All the circumstances of case, including “factors (a) and (b)”
  • At stage 1, seriousness etc relates to the initial delay in A/S or filing Defence
55
Q

What is promptness in Denton v White?

A
  • “Promptness” in making the application to set aside is both:
  1. an express requirement under r. 13.3(2), being one of the matters to which the court must have regard when considering discretionary setting aside of default judgments; and
  2. a factor to be considered as part of all the circumstances of the case at Stage 3 of the Denton principles
56
Q

What is

“some other good reason” in Denton v White?

A

Broad power to set aside for some other good reason. For example:

  • C being unnecessarily aggressive
  • Serious allegations of misconduct needing investigation at a trial
  • Failure by C to serve a “response pack” (conflicting decisions on this)
57
Q

What are the costs in summary judgment?

A

Court MAY make summary assessment of costs. If order doesn’t mention costs = no party entitled to costs relating to that order.

58
Q

SETTING ASIDE ORDER FOR SJ

A

If order made against respondent who doesn’t appear at hearing of app, respondent MAY apply for order to be set aside/varied. Court may make order it thinks just.

59
Q

Setting aside by non-party

Non-party directly affected by judgment/order MAY apply to have judgment/order set aside/varied.

Alternatively:

A
  1. First join the TP as D2
  2. Then TP can apply to set aside
60
Q

Setting aside on conditions = Court MAY impose conditions when it makes orders. This applies to

A

setting aside default judgments.

61
Q

Setting aside on conditions = Court MAY impose conditions when it makes orders. This applies to setting aside default judgments. MAY include condition to pay a sum of money into court.

Condition may be:

A
  1. requiring D to pay whole/party sum claimed into court
  2. ordering D to pay costs “thrown away”

Where C abandoned claim for remedy to obtain default judgment and it is set aside, the abandoned claim is restored when default judgement set aside.

Civil Lit (23 decks)

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