Advocacy (DR Legal Tests) Flashcards
Advocacy
What is the legal test for an Interim Injunction?
Pursuant to CPR 25.1, the Court may grant an interim injunction.
Applying the American Cyanamid Guidelines, an injunction may be granted if….
(a) There is a serious question to be tried.
(b) Damages would be an inadequate remedy for the party injured; and
(c) On the balance of convenience, granting the injunction carries the lesser risk of injustice.
What is the legal test for a Stay of Proceedings?
Pursuant to CPR 3.1(g) the court can stay proceedings until a specific date or event.
Parties can request a stay of proceedings for one month while trying to engage in ADR. This can be extended by the court pursuant to CPR 26.5.
What is the legal test for a Relief from Sanctions?
Apply the Denton Test:
(a) If the breach is neither serious or significant, the relief should be granted;
(b) If the breach is serious or significant, the court should evaluate the circumstances and ensure the court deals justly but with particular weight to CPR 3.9 that:
- Litigation must be conducted efficiently and at proportionate cost.
- Courts should enforce compliance with Rules, Practice Directors and Orders.
What is the legal test for Setting Aside Default Judgment?
Pursuant to CPR 13.1 the court has power to vary default judgment.
Pursuant to CPR 13.2 the court must set aside judgment if it was wrongly entered: (i) time limit was not expired; (ii) acknowledgment was served; (iii) summary judgment or strike out had been applied for.
Pursuant to CPR 13.3 the court may set aside judgment and exercise discretion if it was correctly entered but
- the defendant had a real prospect of successfully defending the claim; or
- some other good reason.
When considering whether it ‘should’ consider the Denton Test for relief from sanction.
What is the legal test for a Strike Out Application?
Pursuant to CPR 3.4, the court may exercise power to strike out the whole or part of a statement of case of its own initiative or on application of a party if the Statements of Case:
(a) Discloses no reasonable grounds for bringing/defending a claim; or
(b) Is an abuse of court process; or
(c) There has been failure to comply with a rule, PD or order.
What is the legal test for a Summary Judgment?
Pursuant to CPR 24.2 the court may dispose of claims or issues without the need for a full trial. Either party can apply if it considers the other party’s position sufficiently weak.
Pursuant to CPR 24.3, the grounds necessary for summary judgement are as follows:
- No real prospect of succeeding or successfully defending the claim or issue. This means the position is fanciful, imaginary or false; and
- There is no other compelling reason why the case or issue should be disposed of at trial
What is the legal test for a Interim Payment?
Pursuant to CPR 25.7 the court may make an order for an interim payment where any one of the following are satisfied:
- D admitted liability to pay damages to C
- C obtained judgement against D for damages to be assessed
- The court is satisfied that if the claim went to trial, C would obtain judgement for a substantial amount of money against D
It must not be more than a reasonable proportion of the likely amount of the final judgment.
What is the legal test for Security for Costs?
Pursuant to CPR 25.12 the defendant can make a claim for security for costs.
Pursuant to CPR 25.17 the court may grant an order if:
(a) The defendant satisfies one or more prescribed conditions:
- Resident out of the jurisdiction nor in EU, Mexico, Singapore and Montenegro.
- C is a company and will be unable to pay the defendant’s costs
- C has taken steps in relation to an asset (e.g. moving an asset)
- C has changed address to evade consequences of litigation
- C failed to give an address in the claim form.
(b) AND, it is just to make an order. The main consideration is the ability of the respondent to comply with a security for costs order.
What is the legal test for Standard Disclosure?
Pursuant to CPR 31.6 the court may issue standard disclosure if…
(a) It is a document
(b) Within the party’s control
(c) And falls within the standard requirements:
- Relied on by a party
- Adversely affect his own case
- Adversely affect another party’s case; or
- support another party’s case;
What is the legal test for Specific Disclosure?
Pursuant to CPR 31.12 the court may issue specific disclosure by having regard to PD31A:
- Overriding Objective
- Circumstances of the Case
- Previous compliance with previous disclosure orders
- If they complied but disclosure is still inadequate
What is the legal test for Pre-Action Disclosure?
Pursuant to CPR 31.16 the court can order pre action disclosure where all are satisfied:
- Respondent likely to be a party in proceedings;
- Applicant also likely to be party in proceedings
- Respondent would have had to give documents as part of standard disclosure
- Desirable to dispose fairly of proceedings
What is the legal test for Non Party Disclosure?
Pursuant to CPR 31.17 the court can compel third parties to disclose:
- Where the documents are likely to support the applicants case or adversely affect the case of one of the other parties; and
- Disclosure is necessary in order to dispose fairly of the claim or to save costs.
What is the legal test for Serving Outside of Jurisdiction?
Pursuant to CPR 6.37 if these three conditions are met, the court may allow service outside of jurisdiction:
(a) C needs to establish one of the following grounds:
- Contract was made within the jurisdiction; or
- Contract is governed by English law; or
- Contract gives court the jurisdiction; or
- Alleged breach committed within the jurisdiction; or
- Damage was sustained, or will be sustained, within the jurisdiction; or
- Damage results from an act committed within the jurisdiction.
(b) The claim must have a reasonable prospect of success
(c) England & Wales must be the ‘proper place’ in which to bring the claim.
What is the legal test for Changing Parties?
(1) Adding before limitation period expires: pursuant to CPR 19.4 the main test is that the amendment is desirable.
(2) Adding after limitation period expires: pursuant to CPR 19.6 the main test is that the addition or substitution is necessary:
- Substituted for one named in mistake
- Claim can’t be carried without the new party; or
- Original party died or is bankrupt and his interest has passed to the new party
What is the legal test for Cost Orders?
(a) Pursuant to CPR 44.2 the court has discretion to order solicitor-client, inter-party and non-party costs.
(b) Pursuant to CPR 44.3 and CPR 44.4 the court can issue on either a standard basis or indemnity basis. When deciding, have regard to:
- Conduct
- ADR
- Complexity
- Budgets
- Time spent on Case
What do you call a district judge?
Judge
What do you call a circuit judge?
Your Honour
What do you call a recorder ?
Your Honour
What do you call a High Court Judge?
My Lord/ My Lady
What do you call a High Court Master?
Judge
When will an unless order be granted?
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:
(1) The other party is in breach of the court order; and
(2) The applicant has complied with the court order
What is the name of the test for granting an interim injunction?
American Cyanamid Guidelines
What are the three stages to the American Cyanamid Guidelines?
(a) Serious question to be tried.
(b) Damages would be an inadequate remedy for the party injured?
(c) On the balance of convenience, granting carries lesser risk of injustice.
Used for granting an interim injunction
What is the test to apply when making an application for relief from sanction?
Denton Test
What is the denton test?
Option 1: If the breach is neither serious or significant, the relief should be granted;
Option 2: If the breach is serious or significant, the court should evaluate the circumstances and ensure the court deals justly but with particular weight to CPR 3.9 that:
- Litigation must be conducted efficiently and at proportionate cost.
- Courts should enforce compliance with Rules, Practice Directors and Orders.
Used for relief from sanctions
What is the test to set aside default judgment if default judgment was entered incorrectly?
If judgment was entered on the basis that the following were satisfied….
- Time expired for filing acknowledgement or defence;
- Defendant did not file an acknowledgement of service or defence
- The claim was not admitted or satisfied by the defendant
- No application for summary judgement or strike was made.
But one of them is incorrect, the court must set aside judgment if it was wrongly entered
CPR 13.2
Don’t forget, you must also consider Denton since default judgment is a ‘sanction’ ammd relief must satisfy the Denton test.
What is the test to set aside default judgment if default judgment was entered correctly?
If judgment was entered correctly, the court may set aside judgment if defendant had a real prospect of successfully defending the claim; or some other good reason.
CPR 13.3
Don’t forget, you must also consider Denton since default judgment is a ‘sanction’ ammd relief must satisfy the Denton test.
When can the court exercise power to strike out the whole or part of a statement of case?
If it…
(a) Discloses no reasonable grounds for bringing/defending a claim; or
(b) Is an abuse of court process; or
(c) There has been failure to comply with a rule, PD or order.
What is the test for the court to consider when granting summary judgment?
(a) No real prospect of succeeding or successfully defending the claim or issue; and
(b) There is no other compelling reason why the case or issue should be disposed of at trial
When making an application for interim payment, what are the grounds that need to be satisifed?
The court may make an order for an interim payment where any one of the following are satisfied:
- D admitted liability to pay damages to C
- C obtained judgement against D for damages to be assessed
- The court is satisfied that if the claim went to trial, C would obtain judgement for a substantial amount of money against D
It must not be more than a reasonable proportion of the likely amount of the final judgment.
What is the test if you wish to add parties before limitation period expires?
The amendment is desirable.
What is the test if you wish to add parties after the limitation period expires?
The addition or substitution is necessary:
- Substituted for one named in mistake;or
- Claim can’t properly be carried without the new party; or
- Original party died or is bankrupt and his interest has passed to the new party
Your making an application for summary judgment.
What two grounds must be shown?
No real prospect of succeeding in the claim or defence and
No other compelling reason why the case or issue should be disposed of at trial.
You are making an application to set aside default judgment.
In addition to the mandatory CPR 13.2 and discretionary CPR 13.3 sumissions, what else should be considered?
PROMPTNESS
and
Denton Relief from Sanctions
You are applying for an interim injunction.
Aside from relying on the American Cyanamid guidlines, what else should you make in your submissions?
Applicant willing to give an undertaking as to costs
What submissions should you make for a Norwich Pharmacal Order?
Civil Disputes
(a) Wrong has been carried out;
(b) Need for order to enable action to be
brought against ultimate wrongdoer; and
(c) Person against whom order sought is:
- More than a mere bystander and
- Be able to (or likely) provide info
(d) It is necessary and proportionate.
You are making a first appeal.
What are the grounds?
The decision was…
(a) Wrong (error in law, fact or exercise of
court’s discretion) or
(b) Unjust because of a serious procedural
…..
Permission will be granted if there is:
(a) Real prospect of success; or
(b) Some other compelling reason
You are making a second appeal.
What are the grounds?
Civil Disputes
The decision was…
(a) Wrong (error in law, fact or exercise of
court’s discretion) or
(b) Unjust because of a serious procedural
…..
Permission will be granted if there is:
(a) Real prospect of success, and raises an important point; or; or
(b) Some other compelling reason
You are making submissions before a civil court on behalf of the applicant who is D in the main proceedings.
How should you introduce the parties?
May it please the court, I appear on behalf of the Applicant, who is the Defendant in the substantive proceedings.
My friend opposite appears on behalf of the Respondent, the Claimant in the substantive proceedings.
You are making submissions before a civil court on behalf of the applicant who is C in the main proceedings. You are applying for summary judgment.
have
Once you ahve introduced the parties, what should you do?
Explain why you are there.
“This is the Claimant’s application for summary judgment pursuant to Civil Procedure Rule 24.2 in relation to the Claimant’s claim of negligence against the Defendant.”
You are making submissions before a civil court
Before outlining the legal test and submissions, what should you do?
Stage 1: Check about papers…
“Does the Court have sight of the relevant papers in this case?
Has the court received the Particulars of Claim and Defence?”
Stage 2: Check about facts. Split into factual and, if relevant, procedural.
“Would it assist the Court if I outline the facts of the case?”
“Would it assist the Court if I outline the facts of the case provide a procedural history?”
You are making submissions before a civil court
Hvaing introduced the parties and undertaken the relevant factual/procedural formalities, what should you do?
First, set out the legal test.
For example, “Moving now to the test for the application. The test for summary judgment is set out in CPR 24.2…”
Second, set out the submissions.
“I have three submissions. I am going to make my submissions according to the limbs of the test in CPR 24.2 in turn…|
You are making submissions before a civil court
How should you conclude?
For the reasons I have outlined, it is my submission that …
and I respectfully request the court do X
Unless I can assist you further those are my submissions.
You wish to make an application for strike out on the basis that a statment of case consists of an abuse of process.
Provide an example of factual pattern that could be considered an abuse of process?
A vexatious litigant commencing a claim with no intention of taking the case further;
or
An obviously ill-founded claim.
Who makes an application for an interim payment?
Only the claimant
Who makes an application for security of costs?
Only the defendant
You are making an application on behalf of the claimant for interim payment.
Having set out the relevant condition relied upon, what other three submissions should then be made?
(A) Order must be no more a reasonable proportion of the likely amount of the final judgment; and
(B) If relevant, consider if there is a reduction due to contributory negligence; and
(c) Applicant makes an undertaking to pay damages if the injunction was improvidently granted
You are asked to make an application for relief fior breach of an unless order.
What test do you apply?
DENTON
You are attending a case management hearing
Where should the case be allocated?
It is of a value less than £10,000
Small Claims
You are attending a case management hearing
Where should the case be allocated?
It is of a value less than £25,000 and the trial will last no longer than 1 day
Fast Track
You are attending a case management hearing
It is of a value less than £25,000 and the trial will last no longer than 1 day
Explain to your client how many expert evidence they are able to call in the fast track?
Only 1 oral expert giving evidence per party in no more than 2 expert
fields
You are attending a case management hearing
Where should the case be allocated?
It is valued at £50,000 and the trial will not last longer than 3 days.
Intermediate track
(£25k + to £100K)
You are making submissions before a civil court on behalf of the applicant who is D in the main proceedings.
You are applying for security of costs.
What are the submissions to make?
(A) One of the prescribed conditions are satisfied:
- C resident outside the jurisdiction.
- C is a company and there is reason to believe they will be unable to pay D’s costs if ordered to do so.
- C changed address to try evade enforcement.
(B) It is just to make an order: Consider the ability of the respondent to comply with any order for security for costs.
(C) Application on amount of security. Taking into account:
- Amount of Ds likely costs
- Security for whole action or up to a point
- Deduction for likely reduction
