Advocacy - DR Flashcards
Summary judgment
CPR 24.2
a) The respondent has no real prospect of succeeding in the claim or defence
AND
b) There is no other compelling reason why the case / issue should be disposed of at trial
Setting aside default judgment - mandatory ground
CPR 13.3
MUST set aside:
a) Judgment entered too early, before time for filing AOS / defence expired
OR
b) D has already settled and paid claim in full
OR
c) AOS or defence had actually been filed on time
OR
d) Summary judgment or strike out had been applied to before judgment was entered
Setting aside default judgment - discretionary ground
MAY set aside:
a) Grounds:
- D has a real prospect of successfully defending the claim
OR
- Some other good reason why D should be allowed to defend the claim
b) Court must consider promptness in making the application
c) Court must act in accordance with the overriding objective
d) Apply Denton test (relief from sanctions):
- Whether the breach has been serious or significant?
- Why the default occurred?
- All the circumstances of the case
E.g: ill health, further evidence required, public interest in a trial
Strike out
CPR 3.4
a) The statement of case discloses no reasonable ground for bringing or defending the claim,
OR
b) The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings
OR
c) There has been a failure to comply with a rule, PD or court order (e.g. late service / exchange of docs)
d) Court has power to make judgment without trial after strike out - party may obtain judgment with costs by filing a request for judgment
Interim payment
Grounds
a) D has admitted liability to pay damages or some other sum to C
OR
b) C has obtained judgment against D for damages (or sum other than costs) to be assessed
OR
c) Court is satisfied that if the case went to trial, C would obtain judgment for a substantial amount of money (other than costs) against D
Amount ordered
d) Court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment
Taking into account:
* Contributory negligence, AND
* Any relevant set-off or counterclaim
Interim injunction (prohibitory)
CPR 25
a) Granted where it is just and convenient
b) Apply the American Cyanamid guidelines in interpreting above:
* Is there a serious question to be tried (ie not frivolous nor vexatious)?
* Would damages be an adequate remedy for applicant and can respondent afford to pay?
* Where does the balance of convenience lie?
c) Equitable and discretionary remedy – equitable maxims
* Clean hands
* Excessive delay
* Would it serve no practical purpose?
* Not automatic
d) Applicant gives a cross-undertaking
Freezing order / injunction
CPR 25.1
a) A good arguable case
b) Defendant / respondent has assets belonging to or under their control within the jurisdiction
c) There is a real risk that the respondent may dissipate those assets, and the judgment will be left unsatisfied if the order is not given
d) That the order is just and convenient
e) Other factors the court will take into account:
* Evidence that a respondent has manipulated assets
* Moving assets out of the jurisdiction
* The financial standing of the respondent and credit history
* Statements made and conduct of the respondent
f) Applicant gives a cross-undertaking
GARJOC
Freezing injunction - real risk
1) This can be inferred from D’s conduct and character, and also any special knowledge D has
* E.g. Being a banker means D might know how to move money around quickly.
2) Risk can be inferred from evidence that the respondent has (disjunctive):
* a. Been dishonest
* b. Defaulted on a debt in the past
* c. Started to remove or dissipate assets
* d. Already has asset in jurisdictions where English judgements are hard to enforce
* e. lives in a tax haven.
3) Real = more than fanciful
4) There must be ‘solid evidence’ to support the assertion
Freezing injunction - good arguable case
a) Show a case that is more than barely capable of serious argument but not necessarily one which has a greater than 50% chance of success at trial
B) Lower threshold than balance of probabilities
Search order
- An “extremely strong” prima facie case
- Potentially very serious damage to C
- Clear evidence that D actually has the relevant item(s) in their relevant possession and a real possibility that they will destroy or hide it
- Full and frank disclosure by C of all matters which are material to the case
- Proportionate response to a claim - given that it is so serious
Discharge of injunction
Can seek to discharge an injunction for one of the following reasons:
- Offering security for the claim
- Showing that the injunction was obtained based on material non-disclosure
- Means that not all relevant info was provided by the applicant
- Failure of applicant to comply with terms on which the injunction was granted
- Injunction was oppressive
- Significant delay since injunction granted
Relief from sanctions
Denton test
a) Identify the default and assess its seriousness or significance
* i.e. has it imperilled future hearing dates / disrupted conduct of litigation?
b) Consider why the default occurred
* Is there a good reason for it?
c) Consider all the circumstances of the case, to enable the court to deal justly with the application
* The need for litigation to be conducted efficiently and at proportionate cost, AND
* To enforce compliance with rules, PDs and orders
* General conduct of parties
* Previous compliance
* Promptness of application
Unless order
CPR 3
a) The other party is in breach of a court order:
AND
b) They have complied with the order
Case management hearings
- Relevant legislation: case management powers of court set out in CPR Part 3
- Which section of CPR is being varied?
- Test: how would it satisfy the OO?
- Why are you applying and how does it satisfy the OO?
Track allocation
CPR 26.7
a) Set out facts of case
b) Apply CPR factors considered in track allocation: where would the claim be handled most effectively?
* The financial value of the claim (if any)
* The nature of the remedy sought
* The likely complexity of the facts, law or evidence
* The number of parties or likely parties
* The value of any counterclaim or additional claim and the complexity of any matters relating to it
* The amount of oral evidence which may be required
* The importance of the claim to persons who are not parties to the proceedings
* The views expressed by the parties
* The circumstances of the parties
c) Conclude with track recommendation
Stay proceedings
CPR 3
- Discretionary power of case management in order to handle proceedings in line with OO
- Why is the stay necessary?
- How is it in the interests of the OO?
- Was the application made promptly as soon as the need for a stay arose?
Cost hearings
a) General Rule: the unsuccessful party pays the costs of the successful party:
* Has the applicant been wholly or partly successful?
b) Is there reason to depart from general rule? Court has discretion as to costs:
* If successful party, argue that there is not
* If unsuccessful party, argue that there is
* Was the application only partially successful?
* Conduct of the parties
* Have parties acted reasonably?
* Complexity of matter
* Place/ circumstances in which work was done
* Last approved/ agreed budget
c) Specify what costs order you would like court to make:
* Costs in any event;
* Costs in case;
* Costs reserved;
* Claimant’s or defendant’s costs in the case;
* Costs thrown away;
* Costs of and caused by;
* Costs here and below;
* No order as for costs.
Security for costs
CPR 25
a) Justness – having regard to all the circumstances it is just to make an order
* Strength of claim and defence
* C’s ability to provide security
* Causes of C’s impecuniosity (by D?)
* Property within the jurisdiction
* Timing of app
* Claim which does not appear genuine
b) One or more of the 6 prescribed conditions are satisfied
* C is resident outside the jurisdiction
* C is an impecunious company (there is reason to believe they will be unable to pay D’s costs if ordered to do so)
* C has taken steps to make enforcement difficult
* C has changed address since claim started with view to evade consequences of litigation
* C failed to give an address or have an incorrect address on CF
* C is acting as a nominal C AND reason to believe they are unable to pay D’s costs if ordered to do so
c) Application on amount of security – if the court makes an order for security for costs, it will determine the amount of security as well as the manner in which / time within which the security is given
Taking into account:
* Amount of D’s likely costs
* Security for whole action or up to a point in time (e.g. up to disclosure)
* Amount can cover costs incurred (incl. Pre-action) and future costs
* Deduction for likely reduction upon assessment for costs or possibly of settling
* Other factors e.g. delay may mean security not given for costs already incurred
Security for costs - justness factors
- Strength of claim and defence
- C’s ability to provide security
- Causes of C’s impecuniosity (by D?)
- Property within the jurisdiction
- Timing of app
- Claim which does not appear genuine
SPATIG
Security for costs - 6 prescribed conditions
- C is resident outside the jurisdiction
- C is an impecunious company (there is reason to believe they will be unable to pay D’s costs if ordered to do so)
- C has taken steps to make enforcement difficult
- C has changed address since claim started with view to evade consequences of litigation
- C failed to give an address or have an incorrect address on CF
- C is acting as a nominal C AND reason to believe they are unable to pay D’s costs if ordered to do so
Jurisdiction - if no express clause giving permission/juris i.e. Hague does not apply
Common law
E&W courts have jurisdiction if:
- Possible to serve proceedings on D in the jurisdiction
OR
-
Court gives permission to serve proceedings on D outside the jurisdiction
a) C must establish 1 of the jurisdictional gateways / grounds
Contract:
* Contract made / breached in E&W, OR
* Contract governed by English law, OR
* Contract contains an agreement conferring jurisdiction on English courts
Tort:
* Act causing the damage was committed in E&W, OR
* Loss was / will be sustained in E&W
AND
b) Claim has a reasonable prospect of success
AND
c) E&W is the ‘proper place’ in which to bring claim
* E.g. because witnesses are based there / justice requires it
Applicable law - contract
- If choice of law clause = that applies
- If law not chosen:
* Country where seller / supplier has habitual residence
* Country where property in dispute is located (property dispute)
* If no specific type, where ‘characteristic performer’ (usually party getting paid) has habitual residence
Applicable law - tort
a) Parties free to choose which country’s law applies AFTER tortious events = that law applies
b) Parties free to choose which country’s law applies BEFORE tortious event if:
* Both are pursuing a commercial activity AND choice is freely negotiated
c) If law not chosen:
* If BOTH parties habitually reside in same country = that country’s law applies
* If not, country in which damage has occurred / is likely to occur
First appeal
CPR 52
Grounds
a) Wrong
* Error in law
* Error in fact
* Error in exercise of court’s discretion
OR
b) Unjust because of a serious procedural or other irregularity in the proceedings in the lower court
Permission
c) Appeal has a real prospect of success
OR
d) Some other compelling reason why appeal should be heard
