4b. Disputes Advocacy Applications Flashcards
What are the most likely applications you would have to make in the disputes advocacy assessment?
- Summary judgment
- Set aside default judgment
- Interim payment
- Interim injunction
- Relief from sanctions
- Security for costs
- Strike out
All are discretionary except if default judgment is wrongly entered
If you cannot remember the test for the application you are asked to make, what can you fall back on?
Submit that what you are seeking is in line with the overriding objective and the need to conduct proceedings justly and at proportionate cost
For the applications where you have done something wrong, e.g. set aside default judgment and relief from sanctions, what should you do at the beginning of your substantive submissions?
Acknowledge the failure, e.g. not responding on time, and apologise to the court (explain delay where applicable)
You are an officer of the court, and it is expected you will expressly acknowledge the failure to comply with court directions
Summary judgment
What is the test for summary judgment?
Is the court’s power mandatory or discretionary?
- Claim/defence has no real prospect of success, and
- No other compelling reason for the matter to proceed to trial
Discretionary
Summary judgment
What does the compelling reason limb refer to?
Whether the court has all the information it needs to make a decision on the merits of the underlying claim
If it does, then there is no reason to waste the court’s time at trial if it can make the call now
Default judgment
When is an order setting aside default judgment mandatory for the court to grant?
If the judgment in default was wrongly entered, e.g. the time for defendant to respond had not yet expired, acknowledgement filed on time, summary applied for before judgment entered, D ha satisfied the whole of hte claim before J entered or admitted the claim or required time to pay.
Default judgment
In all other cases, what must the defendant show to have default jugment set aside?
- Real prospect of successfully defending the claim (i.e. a viable defence), or
- A good reason why the default judgment should be set aside and the defendant be allowed to defend the claim
A rewording of the summary judgment test, but only one of the options is needed although the defendant should try to satisfy both
Interim payment
What must have occurred before the claimant can apply for an interim payment?
Defendant must have filed acknowledgment of service or a defence
Interim payment
What must the applicant for an interim payment include in their application?
- Explain what the payment will be used for
- Request a specific sum
- Show the sum is a reasonable proportion of the likely damages
- Consider contributory negligence, set-off, counterclaim etc.
Interim payment
Additionally, one of what three conditions must be satisifed in an application for interim payment?
If two or more defendants
- Defendant admits liability
- If claim went to trial, claimant would be awarded a substantial sum (even if multiple defendants and application is only made against one - must be insured in this case)
- Claimant has already obtained judgment
Substantial sum and D are : (i) insured (ii) a D whose liability will be met by an insurer (Motor Insurers Beureau AGreement) or (iii) D is public body
Interim injunction
What three things must be shown in application for interim injunction?
Discretionary Power:
* Serious question to be tried
* Damages would not be an adequate remedy, and
* Balance of convenience favours an injunction
* If appropriate can offer a ctoss undertaking to damages
Consider Overriding Objective
Interim Injunction
What is balance of convenience?
Following questions relevant to this assessment
* If injunction not grant, and C wins, could C be
adequately compensation - if yes, no injunction
* If injunction is granted, and D sink, can D be
compensated - if yes, injunction appropriate
* Other factor to be considered e.g., whether either
party would be bankrupted by injunction
Interim injunction
What can an applicant offer to support an application for interim injunction?
What is this?
An undertaking in damages
The applicant promises to compensate the other side if it turns out that the injunction should not have been granted
Relief from sanctions
What is the three stage test applied when seeking relief from sanctions?
- Seriousness of the breach - if not serious then discretion should be exercised
if serious: - Reason for the breach (good reason? Or trivial?)
- Consider all circumstances to deal with case justly (application made promptly? Previous breaches considered).
Consider Overriding Objective
Security for costs
What are four of the grounds, one or more of which must be satisfied when applying for a security for costs order?
Only whom can apply for security for costs?
Claimant:
* Resident outside the jurisdiction
* Corporate body, and reason to believe they will be unable to pay defendant’s costs
* Changed address, failed to provide address, or gave incorrect address with a view to evading consequences of litigation
* Took steps re: their assets that would make it difficult to enforce an order for costs
* acting as a nominal claimant (suing for the benefit of another person)
Defendant, because claimant is free to discontinue proceedings at any time
