Advocacy - DR Law

Question 1

What are the grounds for setting aside a default judgement?

Answer 1

Mandatory = wrongly entered into as the time for filing the acknowledgement of service or a defence had not passed

Discretionary:

1. The defendant has a real prospect of successfully defending their claim
2. There is some other compelling reason why the defendant should be allowed to defend their case

Question 2

What are the Denton v White factors and which application do they relate to?

Answer 2

Relate to an application to set aside a default judgement

1. Serious and significance of the failure to respond to proceedings
2. Why the defendant failed to respond to proceedings
3. All the circumstances of the case
   a) Will D suffer any prejudice if the judgement is not set aside?
   b) Did D act promptly in making the application?

Question 3

What are the grounds for entering into a summary judgement?

Answer 3

The court considers that:

1. The claimant/defendant has no real prospect of successfully proving/defending their case at trial
2. There is no other compelling reason why the case should be disposed of at trial

Question 4

What are the conditions for a security of costs order?

Answer 4

1. Claimant is resident outside of the UK or outside of a 2005 Hague Convention State
2. The claimant is an impecunious company
   - Need to produce evidence that the claimant will be unable to pay the defendant’s costs if they were ordered to do so
3. The claimant has taken steps in relation to their assets to make enforcement difficult
   - Court looks at the effect of actions rather than the intent behind them

Question 5

What factors do the court take into account in determining whether or not it is just to make a security of costs order?

Answer 5

1. The strength of the claim and defence
   - Is there a high degree of probability of the claimant’s claim failing?
2. The claimant does have the ability to provide security
3. The claimant does not have property within the jurisdiction that would meet the defendant’s costs if ordered to do so
4. The reason for the claimant’s impecuniosity is not due to the defendant’s behaviour
5. The defendant has made this application promptly/as soon as reasonably practicable

Question 6

What are the grounds for granting an interim payment?

Answer 6

1. The defendant has admitted liability
2. The claimant has obtained a judgement against the defendant and is waiting for damages to be assessed
3. The claimant can show that, if the claim proceeded to trial, they would obtain a substantial amount of money

Question 7

Interim payment: for the ground ‘the claimant will obtain a substantial amount of money at trial’, what factors should be addressed in this application?

Answer 7

1. The merits of the claim and why it will succeed
2. The amount of substantial damages that will be awarded at trial
3. Why the Judge should exercise their discretion to make the order
4. The amount of interim payment that is sought is a reasonable proportion of the likely final judgement

Question 8

What are the guidelines for making an interim injunction?

Answer 8

American Cyanamid principles:

1. There is a serious question to be tried
2. Damages would not be an adequate remedy
3. Where the balance of convenience lies
4. Any other special factors

Question 9

What are the grounds for striking out a statement of case?

Answer 9

Can strike out the statement of case if:

1. There are no reasonable grounds for bringing/defending the claim; or
2. Failure to comply with a rule, practice director or court order

The respondent will have to persuade the court that it would be inappropriate or unjust to make the order

Question of the court: “what is the just order to make having regard to all the circumstances of the case” => overriding objective plays a significant role in this application

Question 10

What factors are taken into account when considering whether to grant relief from sanctions?

Answer 10

Denton v White factors:

1. Seriousness and significance of the breach
2. Why the breach occurred
3. Evaluate all the circumstances of the case

Question 11

What is an unless order and what needs to be shown for one to be granted?

Answer 11

If a party has not taken steps in proceedings in accordance with a court order, an unless order can be made
- If the party does not comply with the unless order, the claim will be struck out

Show that:

a) The other party is in breach of the court order; and
b) The applicant has complied with the court order