Advocacy: DR Flashcards
Summary Judgment
discretionary power if applicant can show:
- Claimant has no real prospect of successfully succeeding on the claim or issue // Defendant has no real prospect of successfully defending the claim or issue; AND
- there is no other reason why the case // issue should be disposed of at trial
- Dispute of facts (between parties, witness, further witnesses)
- Dispute on expert evidence (will judge benefit hearing this orally)
- Is there consequent on wider group of people or just parties
- Overriding objective
Setting Aside Default Judgment
- Court MUST set aside if judgment was wrongly entered
- Discretionary power to set aside if applicant can show:
- they have real prospect of successfully defending the claim; OR
- it appears to the court that there is some other good reason why judgment should be set aside, or defendant should be allowed to defend claim - Court must also consider whether application has been made promptly
Security of Costs
Discretionary if court satisfied that:
- Just to make the order
- strength of case
- ability to provide security
- is application prompt - defendant can establish one or more of grounds:
Claimant
- resides outside of the jurisdiction (not Brussels contracting state);
- is a company or other body and there is reason to believe they will be unable to pay costs if ordered to do so;
- has changed address since claim stated with a view to evading the consequences of litigation;
- failed to provide an address or gave an incorrect address on claim form;
- is acting as a nominal claimant and there is reason to believe they will not be able to pay costs if ordered;
- has taken steps in relation to his assets that would make it difficult to enforce an order for costs against them
Interim prohibitory injunction?
Discretionary if applicant can show:
- There is a serious question to be tried
- real prospect of success - Damages would not be an adequate remedy for the loss
- the balance of convenience lies in favour on injection
- prejudice to party seeking injuction if not given, vs to defendant if it is given - if appropriate, can offer cross undertaking
- for damages if later found injunction was wrongly made
Unless Order
Discretionary power to make order if applicant can show:
- other party is in breach of a court order; AND
- Applicant has complied with order; AND
- the order would be be in the interest of the overriding objective to enforce court orders and deal with cases fairly, justly and with proportionate costs
Strike Out
Discretionary Power if applicant can show:
- that the statement of case discloses no reasonable gourds for bringing // defending the claim
- Claim or defence is an abuse of process
- dishonesty such as false SoT
- deliberately over or under valuing claim (consider that this is also false SoT)
- bringing 2nd claim on same issue when that could/should have been part of 1st claim
- - there has been a failure to comply with a court order, procedure rules or payment of court fees
Relief from sanctions (non compliance with any rule or practice direction and/or having claim strict out)
Discretionary power and court will consider all circumstances of case so as to deal justly with application with regard to overriding objective.
Case law indicates the court will consider the following factors:
- Seriousness of the non-compliance
- any breach of direction will be serious - Why non-compliance occurred
- is there a good reason - All circumstances of the case to deal with it proportionately, efficiently and enforce compliance
- was application prompt
- previous breaches
- is action appropriate
- does it effect set dates
- prejudice to other party
Adjournment of Stay of proceedings
Discretion to manage cases so they further overriding objective (deal with cases fairly, justly and at proportionate cost)
- Explain why necessary
- Show why in interest of overriding objective
- fair
- just
- proportionate cost - Show that application is prompt after need arose
Track allocation hearing
Discretionary power of court to allocate
- Facts of the claim
- Relevance of facts to factors considered in allocation
- Value (on in dispute, not taking other things into account)
- parties (are they minors or protected parties)
- Personal Injury
- claim complexity (facts law and evidence)
- amount of oral evidence required - If Fast or Intermediate then facts relevant to allocation between complexity bands
- Give your recommendation
Interim Payment
Discretionary if claimant can show:
- That AoS has been filed // end of period for filing of AoS
- One or more of below conditions:
- D has admitted liability to pay damages or some other sum
- C has obtained judgement for damages/other sum yet to be assessed
- court is satisfied that if claim went to trial C would obtain substantial sum (other than costs)
If claim is against 2+ defendants
- court satisfied that if case when to trial C would obtain substantial amount against at least one of defendants
- all defendants are with ensured, would have liability met by an insurer under Motor Insurers Bureau Agreement or defendant is a public body
- Explain what interim payment will be used for
- Requires specific sum or instalment
- Demonstrate that sum requested is a reasonable proportion or likely damages
- If relevant address on
- contributory negligence
- any relevant set-off or counterclaim
Interim Mandatory Injunction
- The applicant will suffer serious harm if the injunction is not granted;
2.the applicant is likely to succeed at trial; and
3.the respondent is not required to incur expenditure disproportionate to the applicant’s harm
Interim Freezing Injection
- The applicant has a good arguable case.
- This has been held to mean a case that is more than barely capable of serious argument but not necessarily one with a greater than 50 per cent chance of success at trial and a plausible evidential basis. - The respondent holds assets against which such judgment could be enforced.
- There is a real risk without an injunction, the respondent will deal with the assets (or reduce their value) outside the ordinary course of business, which would impair the availability or value of assets so the judgment would be left unsatisfied.
- In practice, the risk of dissipation can often be shown in a claim for fraud by the nature of the claim.
Search Order
1 strong prima facie Case on merits of underlying claim
2 da activities must cause very serious potential or actual harm to C’s interests
3 clear evidence that property or docs are in defendants possession and there is real possibility that material may be destroyed before application on notice
Pre-Action Disclsoure
Court has discretion to order pre-action disclosure if applicant can show:
- respondent is likely to be a party to subsequent proceedings
- applicant is also likely to be a party to those proceedings
- Document/class of documents sought would come under standard disclosure
- it is desirable to either:
- dispose of anticipated proceedings fairly,
- assist in dispute being resolved without proceedings; or
- save costs
Specific Disclosure
Court has discretionary power to order specific disclosure including and order that a party:
- disclosure specified docs/class of docs
- carry out a search to a state extent
- disclose any docs located as a result of that search
- Considerations for Specific Disclosure
- what docs/search is sought
- grounds for believing docs are or have been in other parties’ control;
- how docs are relevant.
- why it is reasonable and proportionate (cost, ease of access); and
- what safeguards can be provided (in case of confidential info)
