Advocacy - Dispute Tests

Question 1

Setting aside Default Judgment (mandatory) - CPR 13.2

Answer 1

a) The defendant filed an acknowledgment of service or defence within the time limits
b) The defendant applied for strike out or summary judgment before default judgment was entered
c) The whole of the claim was satisfied before judgment was entered

Question 2

Setting aside Default Judgment (discretionary) - CPR 13.3

Answer 2

a) The defendant has a real prospect of successfully defending the claim; or
b) It appears to the court that there is some other good reason why
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

The court must have regard to whether the applicant made an application promptly.

Question 3

Summary Judgment (may given on whole claim or a particular issue) - CPR 24.2

Answer 3

a) If the court considers that:

(i) the claimant has no real prospect of succeeding on the claim or issue; or
(ii) the defendant has no real prospect of successfully defending the claim or issue; and

b) there is no other compelling reason why the case or issue should be disposed of at a trial.

An application for summary judgment may be based on:

(i) a point of law (including a question of construction of a document), and/or
(ii) the evidence which can reasonably be expected to be available at trial or the lack.

Question 4

Strike out a statement of case - CPR 3.4

Answer 4

The court may strike out a statement of case if it appears to the court -

a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
c) that there has been a failure to comply with a rule, practice direction or court order.

Question 5

Interim payments - CPR 25.7

Answer 5

The court may only make an order for an interim payment where any of the following conditions are satisfied:

a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;
b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed;
c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim.

The court must not make an award of an interim payment that is more than a reasonable proportion of the likely amount of the final judgment. In assessing the sum to award, the court must take account of contributory negligence, as well as any set-off or counterclaim.

Question 6

Application for specific disclosure (where it appears the standard disclosure was inadequate) - CPR 31.12

Answer 6

Can apply for order that respondent should:

a) disclose documents or classes of documents specified in the order;
b) carry out a search to the extent stated in the order;
c) disclose any documents located as a result of that search.

Sate why think docs exist and justify e.g. establish an issue such as liability.

In an appropriate case, the court can make a specific disclosure order requiring a party to search for and disclose documents which, it is reasonable to suppose, may contain information that:

a. Will assist the applicant’s case or damage the respondent’s case;
b. May lead to a train of enquiry that will assist the applicant’s case or damage the respondent’s case.

Consider: the court will take into account all the circumstances of the case and, in particular, the overriding objective described in Part 1.

Question 7

Pre-Action disclosure (an application to the court before proceedings have been issued to obtain disclosure of documents from another potential party to the claim) - CPR 31.16

Answer 7

The court may make an order only where:

a) the applicant and the respondent are likely to be parties to subsequent proceedings;
b) if proceedings had started, the respondent’s duty by way of standard disclosure, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
c) pre-action disclosure is desirable in order to dispose fairly of the anticipated proceedings, to assist the dispute to be resolved without proceedings, or in order to save costs.

Question 8

Security for costs (an order requiring a party to pay money into court, or to provide a bond or guarantee or an insurance policy as security for their opponent’s costs of the proceedings or a part of the proceedings) -
CPR 25.13

Answer 8

The court has the discretionary power to make an order for security for costs if:

(a) it is satisfied, having regard to all the circumstances of the case, it is just to make such an order; and
(b) one or more of the conditions in Part 25 applies

Conditions:

1. Claimant resident outside Hague convention
2. Claimant is an impecunious company
3. Claimant has taken steps to make enforcement difficult

Justness: The court must also be satisfied that it is just to make the order and the following factors are considered important.

(a) The strength of the claim and the defence: the less likely the defendant is to win at trial, the less justified they are in seeking security.

(b) The claimant’s ability to provide security: where the claimant has a reasonable prospect of success, the courts will be reluctant to make an order for security with which they cannot comply as the effect will be to stifle the claim.

(c) The causes of the claimant’s impecuniosity: the claimant may be able to persuade
the court that their poor finances are caused by or contributed to by the defendant’s
behaviour.

(d) Property within the jurisdiction: where the application is made against a claimant resident outside the EU, the court is unlikely to grant security if they have sufficient assets within the jurisdiction that would be available to meet the defendant’s costs.

(e) The timing of the application: the order should be applied for as soon as practicable

Question 9

Application for unless order (an order that unless the defaulting party complies with its obligations within a prescribed period, the court will automatically strike out all or part of that party’s case) - CPR 3.1 and 23

Answer 9

If the court concludes that the opponent in an interim application has failed adequately to comply with the obligations of a previous order, the Overriding Objective or if the court doubts the sincerity of the opponent, it will often make an order and, at the same time, specify a sanction to be imposed if the order is not complied with in the form of an ‘unless’ order. The order will impose a sanction for non-compliance unless complied with and will specify the date and time by which the steps of the order must be complied with. Sanctions for non-compliance with an unless order are automatic.

Question 10

Relief from sanctions - CPR 3.9

Answer 10

When deciding whether relief from sanctions should be granted, the court will use a three-stage test as set out in the case of Denton v TH White Ltd. [2014] EWCA Civ 906, by which the court must:

1. identify and assess the seriousness and significance of the breach. Relevant factors include:

a) the effect on future hearing dates and the conduct of litigation within the particular case, and on litigation generally;
b) whether despite not having had such an effect, the breach is nonetheless serious;
c) this breach or failure alone. Unrelated past failures should only be considered in the third stage.

If the breach is not serious or significant the court is likely to grant relief from sanctions and not consider parts 2 and 3.

2. consider why the breach occurred. The likelihood is that where reasons were cogent (for example, serious illness or an accident) the court may consider relief.
3. evaluate all the circumstances of the case to enable the court to deal justly with the application, including the two factors set out in CPR 3.9; being the need (i) for litigation to be conducted efficiently and at proportionate cost, and (ii) the need to enforce compliance with rules, practice directions and orders.

Common sanctions include: strike out of a statement of case, paying the non­ defaulting party’s costs, and interest orders.

Question 11

Interim injunctions (prohibatory) - CPR 25

Answer 11

American Cyanamid Co v Ethicon Ltd\97b] AC 396 guidelines:

a) is there a serious question to be tried?;
b) would damages be an adequate remedy (instead of an injunction)?;
c) does the balance of convenience lie in favour of granting or refusing?; and
d) are there any special factors to be considered?

Question 12

Interim injunctions (Mandatory) - CPR 25

Answer 12

(less common) The claimant must set out precisely the action the defendant must take, as well as the timeframe within which they must take it.

Will only be granted if the claimant would otherwise suffer serious harm

Question 13

Interim injunctions (quia timet) - CPR 25

Answer 13

(less common) It must be demonstrated that there is the need to restrain a threatened injury where it is certain or imminent, or, where mischief of an overwhelming nature is likely.

Question 14

Search order (defendant to allow claimant’s representative to enter the premises but not the claimant) - Part 25

Answer 14

The following grounds need to be satisfied before a search order will be made:

a) Extremely strong prima facie case.
b) Damage potential or actual must be very serious for the applicant.
c) The documents or material cannot be obtained in any other way
d) There must be clear evidence that the defendants had in their possession incriminating documents or things.
e) There is a real possibility that the defendants may destroy such material before a notice application is made.
f) The harm likely to be caused by the execution of the search order on the respondent in his business affairs must not be out of proportion to the legitimate object of the order.

in addition:
q) The applicant must give full and frank disclosure.

It is usual for the application to be made before proceedings begin, although an undertaking will have to be given that proceedings will be issued as soon as practicable. A search order cannot be granted separately from court proceedings.

Question 15

Freezing order - CPR Part 25

Answer 15

The court has discretion to grant a freezing order and will do so only when the following conditions are satisfied by the applicant:

a) There is a cause of action (an underlying legal or equitable right) which may give rise to a judgment that can be enforced against the respondent’s assets. A counterclaim is sufficient.
b) They have a good, arguable case, although they do not need to show that the case will definitely succeed.
c) There are sufficient assets in existence to meet the claim.
d) There is a real risk of the disposal or dissipation of the assets.

In addition:
e) the applicant must provide an undertaking to the court to pay any damages to the respondent if it is later shown that the injunction should not have been granted; and
f) the applicant must give ‘full and frank’ disclosure.

Question 16

An application to call a witness to give oral evidence at trial (order permitting party to call a witness to give oral evidence where no witness statement or summary for use at trial was served within the specified time) - CPR Part 32.10

Answer 16

The prohibition on calling a witness whose witness statement has not been served is a ‘sanction’ with automatic effect. Consequently, relief from sanction must be obtained before the court will consider whether to grant permission to call the witness.

If need permission to grant witness, and no breach, no need to apply from relief from sanctions. CPR Part 3.1(2) says:

(2) Except where these Rules provide otherwise, the court may –

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(b) adjourn or bring forward a hearing;

(bb) require that any proceedings in the High Court be heard by a Divisional Court of the High Court;

(c) require a party or a party’s legal representative to attend the court;

(d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

(f) stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;

(g) consolidate proceedings;

(h) try two or more claims on the same occasion;

(i) direct a separate trial of any issue;

(j) decide the order in which issues are to be tried;

(k) exclude an issue from consideration;

(l) dismiss or give judgment on a claim after a decision on a preliminary issue;

(ll) order any party to file and exchange a costs budget;

(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.

(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –

(a) at trial, by their oral evidence given in public; and

(b) at any other hearing, by their evidence in writing.

(2) This is subject –

(a) to any provision to the contrary contained in these Rules or elsewhere; or

(b) to any order of the court.

(3) The court may give directions –

(a) identifying or limiting the issues to which factual evidence may be directed;

(b) identifying the witnesses who may be called or whose evidence may be read; or

(c) limiting the length or format of witness statements.

If application had passed would need:

(a) Relief from sanctions
(b) permission to call witness.

Foster v Action Aviation:

1. Reason witness evidence was not adduce
2. Importance of evidence
3. Prejudice to respondent if granted
4. Prejudice to application if refused
5. The court must consider need to ensure justice between the parties and regard to overriding objective

Question 17

Part 23 for applications - what to bear in mind for all interim applications?

Answer 17

Candidates should also be familiar with the provisions of Part 23 on applications generally, and keep in mind that all applications must be supported by evidence, generally in the form of witness statements attaching any supporting evidence (except for in the case of applications for injunctions which may require affidavit evidence).

Question 18

Overriding objective?

Answer 18

Candidates should always have regard to the court’s primary to ensure justice, which is a fundamental principle of the CPR and its ‘Overriding Objective’, by which it is intended that all cases will be dealt with justly and at proportionate cost.

Question 19

What do you call a Court of Appeal judge?

Answer 19

My Lord/My Lady

Question 20

What do you call a High Court judge?

Answer 20

My Lord/My Lady

Question 21

What do you call a circuit judge?

Answer 21

Your honour

Question 22

What do you call a district judge?

Answer 22

Judge

Question 23

Non-party disclosure

Answer 23

The application must be supported by evidence and disclosure will only be ordered if:

(a) the documents in question are likely to support the applicant’s case or adversely affect the case of another party; and
(b) disclosure is necessary to dispose fairly of the case or to save costs.

The order must specify the documents to be disclosed; and require the non-party to identify which documents are no longer in their control and which are privileged

Question 24

What do you need when you apply for an off notice application?

Answer 24

Where an application is made without notice to the respondent, the evidence must explain why notice was not given.

In addition, the applicant has a duty of full and frank disclosure, which means they cannot take advantage of the respondent’s absence at the hearing and must draw the court’s attention to evidence and arguments they reasonably anticipate the respondent would wish to make.

Question 25

Test for disclosure?

Answer 25

Standard disclosure is defined in CPR, r 31.6 and requires a party to disclose:

(a) the documents on which they rely; and

(b) the documents which:

(i) adversely affect their own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case

The duty to disclose is limited to documents in the party’s control (CPR, r 31.8). This means documents that:

(a) either are or were in their physical possession;
(b) they have a right to possess; or
(c) they have a right to inspect.