Advocacy - DR Structures

Question 1

Outline the structure for an application to set aside a default judgement?

Answer 1

1. Introduction
   - Who you act for
   - What the application is
   - Check that Judge has the hearing bundle
2. Quickly outline what the default judgement is
   - Ask Judge whether they would like a summary of the background facts
3. Outline structure of application
   - What ground will you be submitting to set aside the default judgement on: mandatory or discretionary
   - State that you will briefly deal with Denton v White 3-stage test
4. Make submission on why ground to set aside default judgement is satisfied
   - Real prospect of successfully defending claim = will need to lay out the defence in detail
   - Are there any matters that the court should determine eg: costs?
5. Submission on Denton v White factors
6. What the Judge should order after setting aside the default judgement
   - What track the claim is destined for
   - Give directions for filing of defence and counterclaim
7. Conclusion
   - Ask Judge to exercise their discretion to set aside the default judgement
   - Summarise main submissions made

Question 2

Outline the structure for an application to obtain a summary judgement

Answer 2

1. Introduction
   - Who you act for
   - What the application is
   - Check that Judge has the hearing bundle
2. Quickly outline what summary judgement is sought
   - Damages?
   - What is the claim for (eg: breach of contract)
   - Ask Judge whether they would like a summary of the background facts
3. Outline structure of application
   - What ground the application is made on
   - Go through defence/claim point-by-point to demonstrate that the other party’s claim/defence has no real prospect of success (“the purported defence”, “the purported causation”)
4. Go through each point
   - At the end of each point state that this is why the claimant/defendant has no real prospect of success and therefore there is no compelling reason for the case to be heard at trial
5. Conclusion
   - Ask Judge to exercise their discretion in granting the application
   - Summarise points made in application

Question 3

Outline the structure for making an application for a security of costs order

Answer 3

1. Introduction
   - Who you act for
   - What the application is
   - Check that Judge has the hearing bundle
2. Quickly outline claim in which security of costs is sought for
   - Damages?
   - What is the claim for (eg: breach of contract)
   - Ask Judge whether they would like a summary of the background facts
3. Outline application
   - This application is made on the discretionary ground that….
   - Describe factual basis for application (eg: C’s accounts show that it is running a significant loss)
   - State why it is just to make such an order (one sentence per factor)
4. Make submission that condition(s) for making the application is satisfied
5. Make submission that granting an order would be just
6. Conclusion
   - Ask Judge to exercise their discretion in granting the order
   - Summarise main submissions
   - Ask Judge to order sum of security as requested

Question 4

Outline the structure of an application for a interim payment

Answer 4

1. Introduction
   - Who you act for
   - What the application is
   - Check that Judge has the hearing bundle
2. Quickly outline claim that interim payment is sought for
   - Damages in relation to negligence
   - State any agreements that have been made with regard to costs (eg: special damages subject to liability)
   - Ask Judge whether they would like a summary of the background facts
3. Outline structure of application
   - Claimant has the burden of satisfying to a high standard that on the balance of probabilities they will succeed at trial and obtain a substantial amount of money
   - Normally be 4 main points:
   a) Merits of the claim and why it will succeed
   b) Amount of substantial damages that will be awarded at trial
   c) Why Judge should exercise their discretion to make the order
   d) The amount of interim payment sought is a reasonable proportion of likely final judgement
4. Go through each point of application
   a) Undermine D’s claim
   b) State what the likely award of damages will be and why
   c) Application has been prompt; amount sought makes application worthwhile given how far away the trial is; making an order will not delay or prejudice the fair conduct of trial
   d) Amount sought is a reasonable proportion (eg: 10% or 20%) of likely final judgement of damages
5. Conclusion
   - Ask Judge to exercise discretion and grant interim payment
   - Make submission that the burden has been discharged

Question 5

What is the structure for an application for an interim injunction

Answer 5

1. Introduction
2. Summarise what the case is about
   a) Who the parties are
   b) The background of the claim/what did the proceedings arise from
   c) Would the judge like a summary of the background facts?
3. Outline structure of application
   a) State what interim injunction is being sought
   b) Will refer to the American Cyanamid guidelines:

i. There is a serious question to be tried
ii. Damages would be an inadequate remedy (state cross-undertaking would provide adequate protection)
iii. Where the balance of convenience lies

4. Go through American Cyanamid guidelines
5. Conclusion

Question 6

What is the structure for an application to seek relief from sanctions?

Answer 6

1. Introduction
2. Summarise what the case is about
   a) Who the parties are
   b) What the claim is for
   c) Why the sanctions were imposed in the first place
   d) Would the Judge like a further summary of the background facts?
3. Outline structure of application
   a) What is sought (“relief from [x] sanction”)
   b) Will address Denton v White factors to demonstrate that relief from sanctions should be granted
4. Serious and significance of non-compliance
5. Why the breach occurred
6. Evaluate all the circumstances of the case
   a) Was sanction proportionate to the breach?
   b) Did the applicant seek relief promptly?
   c) Has the applicant committed any other breaches?
7. Conclusion

Question 7

What is the structure for an application for an unless order?

Answer 7

1. Introduction
2. Summarise what the case is about
   a) Who the parties are
   b) What the claim is for
   c) What directions have been given/complied with up until this point
   d) Would the Judge like a further summary of the background facts?
3. Outline structure of the application
   a) Remind the court of their discretionary power to make the order
   b) Will demonstrate that:

i. The other party is in breach of a court order; and
ii. The applicant has complied with the order

4. Present evidence showing how the other party has breached the court order
5. Present evidence showing how the applicant has complied with the same order
6. Conclusion

Question 8

What is the structure for an application to strike out the claim?

Answer 8

1. Introduction
2. Summarise what the case is about
   a) Who the parties are
   b) What the claim relates to
   - Outline the tort/breach of contract
   c) Would Judge like a further summary of the background facts?
3. Outline structure of application
   a) Remind court of their discretionary power to strike out a claim
   b) Will prove that the ground of striking of the claim is met through the following points…
4. Present evidence to explain why the respondent’s statement of case discloses no reasonable grounds for bringing the claim
5. Present evidence to explain how the respondent has failed to comply with a court order, rule or practice direction
6. Conclusion