Advocacy Applications Flashcards
summary judgement
1. no real prospect in succeeding in / defending the claim or issue
- position is fanciful, imaginary, or false
- R must show claim or issue must be more than merely arguable (merits of claim / defence)
- R need not show they would succeed, just that they have some chance, even if improbable
AND
2. there is no other compelling reason why the case or issue should be disposed of at trial
- material facts in dispute
- R needs more time to investigate
- expert evidence likely required
- scrutiny of key docs required
- overriding objective: not just to prevent party from bringing/ defending claim despite showing reasonable prospect of success
setting aside default judgement (discretionary grounds)
1. D has a real prospect of defending the claim
- D must show it has a more than merely arguable defence (merits of defence)
2. It appears to the court that there is some other good reason why the judgement should be set aside or D should be allowed to defend the claim
- Proper venue to decide is trial requiring a full and fair hearing = D disputes material facts, further evidence is needed to establish material facts, expert evidence may be needed, documentary evidence is complex or disputed)
- Matter outside D’s control is the reason for default = D’s ill health or no legal representation prevented them from serving defence on time
- C lulled D into believing a claim was not forthcoming
- C failed to serve a response pack
3. Court must have regard to the promptness at which D submitted this application
- Short time between when judgement was entered, when D discovered proceedings/judgement, discussing with solicitors, making application
4. Case law shows that Denton approach must be considered as this is an application for relief from sanctions
- assess seriousness and significance of failure to file defence on time
- if serious and significant, assess why the default occurred
- evaluate all the circumstances to ensure the matter is dealt with justly, conduct litigation efficiently and at a proportionate cost, and enforce compliance with rules
setting aside default judgement (mandatory grounds)
the court must set aside judgement if the judgement was wrongly entered
examples:
- The time limit for acknowledging service or serving the defence has not expired when judgement was entered
- Acknowledgement of service or defence were filed on time
- Defendant applied for summary judgement or strike out before judgement was entered
- Defendant satisfied the whole of the claim before judgement was entered or required time to pay
- The defendant admitted the claim
interim payment
1. C must satisfy one prescribed condition under CPR
- D admitted liability to pay damages to C
- C obtained a judgement against D for damages
- The court is satisfied that if C went to trial it would obtain a judgement for a SUBSTANTIAL amount of money against D (assess merits of claim AND assess the judgement would be for a substantial sum unless quantum is already agreed)
2. The court cannot make an interim payment order of more than a reasonable proportion of a likely final judgment
3. When assessing the likely final judgement and what is a reasonable proportion, the court must take into account contributory negligence, any set-off defences, or counterclaims
security for costs
1. D must satisfy one prescribed condition under CPR
C is an impecunious company and there is reason to believe it will be unable to pay D’s costs (D must show it has reason to believe the co will (not may) be unable to pay costs but no need on a balance of probability AND the amount of likely costs)
or
- C took steps re its assets that would make costs enforcement difficult (moved assets abroad or to third parties, dissipated assets)
- C is resident outside of jurisdiction not in state bound by Hague Convention
- C changed address since commencement of proceedings with a view to evade consequences of litigation
- C did not give address in claim form
- C is acting as a nominal claimant and there is reason to believe it cannot pay D’s costs
2. It is just to make the order, having regard to the circumstances of the case
- C’s ability to comply with the order and pay and injustice caused = C may not be able to continue with the claim if required to pay (unjust) vs D being at risk on costs if no security is given (unjust)
- If D is using the application to stifle C’s claim and prevent it from pursuing it vs D using the application to mitigate a real risk that it will not receive its costs
- If C’s case is a sham or has little prospects of success (argue merits)
- If D’s actions have resulted in C’s financial difficulties
- Delay by D in making this application = application must be made promptly and as soon as the facts underpinning the application are known
- Admission of liability by D or substantial open offers the court is aware of (app less likely to succeed)
- overriding objective = would it be just and at proportionate cost to make the order?
strike out
one or more of the following grounds can apply
1. the SoC has no reasonable ground for bringing or defending the claim (bare denial. PoC allegation with no supporting facts)
2. the SoC is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings (misuse of court procedure, vexatious litigation, obviously unfounded claim)
3. there has been a failure to comply with a rule, practice direction or court order (high bar - court prefers to impose sanctions and require SOC amendment)
- Late service and exchange of documents
- Not attending court when ordered to do so
- Failure to allow a party to inspect crucial documents
- Being unprepared for court hearings
- Statements of case not complying with rules / PD = e.g., defence not responding to each paragraph of the particulars of claim or giving reasons for denying allegations in the particulars of claim; particulars of claim not providing facts or details after making an allegation
interim injunction
Test = The court has the power to grant an interim injunction where it appears just and convenient (equitable and discretionary)
American Cyanamid Guidelines on how the court should exercise its discretion
1. Is there a serious question to be tried? (existing cause of action, not frivolous or vexatious)
2. Damages would not / would be an adequate remedy for the applicant if the court refused the injunction (damages inadequate if R has no means to pay them, or the harm is irreparable, cannot be quantified, or is serious and likely to continue)
3. Damages would / would not be an adequate remedy for the respondent if the court granted the injunction and it transpires that the injunction was wrongly granted (A will succeed in trial; A can meet the undertaking in damages; harm that R will suffer can be compensated)
4. Where does the balance of convenience lie and what carries the lesser risk of injustice? = The applicant would suffer a greater prejudice if the injunction was not granted than the respondent would suffer if it was granted (court considers broad range of factors + overriding objective)
+
Equitable principles apply
- injunction must serve practical purpose
- applicant must come to court with clean hands
- no excessive delay in applying
relief from sanctions
Denton Approach
1. seriousness and significance of the failure to comply with CPR, PD, or court order
- test is if breach imperilled future hearing dates or otherwise disrupted conduct of litigation
- if breach is not serious or significant, sanction must be set aside
2. why default occurred
3. evaluate all the circumstances to ensure the matter is dealt with justly, conduct litigation efficiently and at a proportionate cost, and enforce compliance with rules
- consider conduct, compliance with pre-action conduct
allocation to track
1. Identify ‘normal track’ for the claim based on it value (small claims, fast, or multi)
2. consider if court should depart from normal track having regard to 9 CPR factors
- financial value of claim
- nature of remedy sought
- number of parties
- complexity of facts, law, or evidence (court has duty to restrict expert evidence to that which is reasonably necessary to resolve dispute)
- oral evidence to be heard at trial
- importance of case to non-parties
- circumstances of parties
- wishes and views of parties
- value of counterclaims or Part 20 claims (value of largest claim not aggregate)
specific disclosure
Party can make application if it thinks the disclosure given by other party is inadequate
1. The requested documents should have already been disclosed under party’s standard disclosure obligation (so PD says an order is required in this case)
- document meets definition of document
- document is or was in party’s control
- document is relied on, adversely impacts R, likely supports A, adversely impacts A
+ no reason to depart from this usual order (e.g., confidential information is not a good reason to withhold disclosure b/c redaction of irrelevant info is possible)
2. Even if court disagrees that doc falls under disclosure obligation, court can and should make order because
- docs are important in case (court required to consider circumstances of case as a whole)
- documents may lead to a train of enquiry which allows the applicant to advance their own case or damage that of the respondent
- overriding objective = disclosure would not be at disproportionate cost + unjust that parties are at unequal footing re information that is central to the case not peripheral
request for further information
Test = A request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet
e.g., D gave bare denial, C did not give supporting facts for allegations
arguments to award costs to client (7)
- general rule = unsuccessful party pays successful party’s costs in dealing with the application (but the court retains discretion to depart from general rule)
- if the court were to decide in favour of client = ask court not to depart from general rule and award costs in any event to client
- if the court decides against client = ask court to exercise its discretion and depart from general rule and award costs in any event to client
factors and reasons:
- conduct of parties before and during litigation
- compliance with PD for pre-action conduct and consequences of not complying
- willingness to engage in ADR or offers to settle (was refusal unreasonable)
- reasonableness of raising or disputing an issue (e.g., pre-mature application)
- overriding objective to conduct litigation justly and at proportionate cost
- not just if client had no choice but to appear at the hearing
- not just if client already sufferred loss as a result of the opposing party’s actions
arguments on awarding amount of costs requested in Statement of Costs
on the standard assessment
- costs were actually incurred
- costs were proportionately incurred and proportionate in amount (considering importance of the application, amount of money in dispute, complexity of issues, additional work generated by paying party)
- costs were reasonably incurred and reasonable in amount (considering time spent preparing for the application, gathering witness evidence, and attending the hearing)
- other factors court must consider under CPR = conduct of parties before and during litigation, efforts to settle, importance of matter, time spent on the case, complexity, specialist skill or knowledge needed, receiving party’s last approved budget
application to amend a statement of case
No CPR guidance – court considerations:
- Proposed amendment has / does not have real prospects of success (especially if amendment to defence) (argue merits)
- Reasons for the applicant not including the amendment in the original statement of case (e.g., availability of evidence or simply a mistake)
- injustice to parties from awarding/refusing amendment (e.g., close to trial date, amendment requires R to amend its SoC)
- overriding objective (R must incur further expense in amending or preparing for trial so not fair for R; A intends to pursue this cause of action so waste of court’s resources to pursue another claim)
- amendment seeking to raise a version of the facts which is implausible, self-contradictory, not supported by documentation or evidence, or pure speculation
If amendment is late and close to trial or hearing date court is hesitant to grant
- R = unfair, imposes excessive burden to prepare and investigate case, produce further disclosure, puts parties on unequal footing, need for amendment does not result from its wrongdoing
- A = high burden, justice for A R and court requires late amendment, strength of amendment, reason for not amending earlier (new evidence came to light)
overriding objective
The overriding objective is to enable the court to deal with cases justly and at a proportionate cost - involves
- Ensuring that the parties are on an equal footing.
- Saving expense.
- Dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party.
- Ensuring the case is dealt with expeditiously and fairly. (e.g., setting deadlines)
- Allotting to each case an appropriate share of the court’s resources, considering the need to allot resources to other cases.
- Enforcing compliance with CPR, practice directions, and court orders.
- Parties and witnesses can fully participate in proceedings (court should take proportionate measures to facilitate participation of vulnerable witnesses)
