Advocacy - Dispute Resolution

Question 1

What is the test for an application for summary judgment?

Answer 1

Discretionary power to grant summary judgment if necessary requirements are met:
1. Claimant/defendant has no real prospect of successfully succeeding/defending claim
2. No other reason why the case should proceed

Question 2

What is the test for an application to strike out?

Answer 2

Discretionary power to strike out if court is satisfied:
1. The statement discloses no reasonable ground for making or defending the claim
2. SoC is an abuse of the court’s processes or
3. There has been a failure to comply with a rule, PD or order

Question 3

What is the mandatory test to set aside a default judgment?

Answer 3

Mandatory power to set aside a default judgment where the judgment was wrongly entered. For example
- Judgment was entered too early
- Judgement was made after an application was issued by the defendant to strike out or dismiss the claim summarily and the application has not yet been considered by the court
- The claim has already been paid or set aside
- Defendant has already submitted a request for time to pay which has not yet been considered

Question 4

What is the discretionary test to set aside a default judgment?

Answer 4

Discretionary power to grant summary judgment if court is satisfied necessary requirements are met:
1. Defendant has real prospect of defending the claim and
2. Some other good reason why the judgment should be set aside and defendant allowed to defend claim

The court MUST also consider whether the application to set aside default judgment was made promptly

Question 5

What is the test for an unless order?

Answer 5

Discretionary power to grant an unless order if applicant can show:
1. The other party is in breach of a court order and
2. The applicant has complied with the order

Question 6

What is the test for a security of costs order?

Answer 6

Discretionary power to grant security of costs order if court is satisfied the necessary requirements are met:
1. Claimant is resident outside the jurisdiction (except Brussels)
2. Claimant is a company or other body and there is reason to believe they will be unable to pay the defendants costs if ordered to do so.
3. Claimant has changed address since claim started with view to evade consequences of litigation OR
4. Claimant failed to give an address or gave an incorrect address on the claim form
5. Claimant has taken steps in relation to assets that would make it difficult to enforce an order for costs against them e.g. moved assets out of jurisdiction

Question 7

What is the test for default judgement?

Answer 7

Discretionary power

Defendant was properly served with the claim.
AND
Defendant must not have responded to the claim either by acknowledgment of service or defence, AND
The relevant time period for responding has expired

Question 8

What is the test for