Advocacy - Interim Application Flashcards
Set aside default judgment (discretionary)
S. 13.3 CPR
P - prospect (real) of
D - successfully defending the claim
O - other
G - good reason to set aside judgment / allow defendant to defend claim
Having regard for:
P - promptness of application made
O - overriding
O - objective
P - prejudice caused to claimant
Also apply relief from sanctions test + made promptly?
Default Judgement
CPR 12
1) Failed to file an acknowledgment of service or defence to a claim or counterclaim
2) Relevant time period has expired
Set aside default judgment (no discretion)
CPR 13.2
F - Filed defence before default judgment, even if late
A - Applied for summary judgment to be struck out before DJ
S - Settlement of whole or part of claim offered before DJ
T - Time to pay request with admission of liability served
Summary judgment
CPR 24
NO!
(1) Respondent has no real prospect of success
(2) No other compelling reason to wait until trial
Orders can be made on whole claim or part of claim
Interim Payment
CPR 25
Grounds:
J - Judgement of substantial sum of money awarded against defendant if claim went to trial other than costs (whether or not defendant is only defendant)
A - defendant admitted liability to pay damages or another sum of money
R - ruling obtained for damages or another sum awarded against D (not including costs)
Test, court satisfied that,
N - necessary (e.g. good reason for asap funding) and proportionate to final judgment (accounting for contrib too)
Relief from sanctions
CPR 23 Application
1) Conduct litigation efficiently and at proportionate cost
2) Enforce compliance with rules, practice directions and court orders
Denton v White
Stage 1: ID and assess seriousness of non compliance (serious or significant)
Stage 2: If it is, why did default occur - persuade there are good reasons
Stage 3: Consider all circumstances for it to be deal t with justly - stress overriding objective
Interim Injunction
CPR 25
American Cyanide Guidelines
1) Sufficiently issue (substantial) to be tried e.g. survive test for summary judgment - summary judgment
2) Adequate remedy of damages?
2) Balance of convenience, fair and just, three stage test:
- would damages be an accurate remedy if applicant succeeds at trial?
- if not, would a cross undertaking in damages provided adequate protection if wrongly granted? If not, shouldn’t be granted.
- special factors considered where damages aren’t sufficient
E - court should preserve status quo
R - requirement for cross undertaking in damages
Freezing injunction
CPR 25
Frozen
Just, convenient +
Before claim, urgent. Without notice, full and frank disclosure of all material facts
C - Cause of action
A - good arguable case
R - risk of assets dissipating
G - goods or assets established / exist
O - obligation to provide undertaking in damages
Done before claim, prove to be urgent or in interest of justice
Without notice, onerous duty of full frank disclosure
Track allocation
26.8
F - financial value
A - additional claims & counterclaims
N - number of parties
C - complexity
I - importance
E - evidence
S - sought remedy
T - the parties’ views
Security for costs
CPR 25.12
Sir Lindsay Parkinson and Triplan are:
Grounds:
R - Resident abroad
I - Inaccessible, steps taken to move assets out of reach
C - Changed address or failed to give correct address
H - Hope of recovering costs not there if ordered to do so
Test:
T - Timing not unreasonable and no delay
I - Intent, make sure bona fide not a sham to stifle a claim
F - fair and reasonable trail
S - success prospects there
Specific disclosure
CPR 31 - first make written request, then:
Grounds:
I - Inadequate disclosure
C - concerns about extent of redaction
U - unreasonably limited
Conditions:
Ear
A - affects or supports case or party’s case
R - reasonable, proportionate and just
E - enable to resolve / save costs
S - speed (urgent) need if pre action
Non party disclosure
31.17
Jurisdictional test
1) Likely to support the case of applicant or adversely affect case of one of the other parties
2) Disclosure necessary in order to dispose fairly of claim and save costs
In JANUARY
J - jurisdictional test
A - adversely effect or support
N - necessary to dispose fairly of claim / costs
Challenge admissibility of evidence - DR
Cripple
C Credibility: Evidence lacks credibility (e.g., witness bias, contradictions, or mental/physical infirmity).
R Relevance: Evidence is not relevant to the case.
I Infirmity: Witness suffers from mental or physical incapacity, affecting reliability.
P Privilege: Documents are privileged and inadmissible.
O Overiding Objective - Exclude under CPR 32.1, ensuring the case is dealt with justly and at proportionate cost.
L Lack of Expertise: Expert lacks the necessary qualifications or expertise.
E Exclusionary Rule: One of the exclusionary rules applies (e.g., hearsay, opinion from non-experts).
Permission for late evidence
Delay
Deadlines: The court can extend or shorten deadlines under CPR 3.1(2)(a), even after expiry (retrospective applications).
Evidence Rules: Late evidence is governed by: CPR 32.10 (witness evidence).
CPR 35.13 (expert reports).
CPR 31.21 (documents).
Late Applications: Retrospective applications are judged using the Denton test (CPR 3.9). In-time applications are considered under the overriding objective (Kaneria v Kaneria).
Allowing Exceptional Cases: The court requires compelling grounds, necessity, and exceptional circumstances to justify the evidence’s relevance and lateness.
Yes to Just Disposal: Late evidence is permitted when it allows the fair resolution of the case (Coal Hunter v Regulas, Currie v Thornley).
Disclosure directions
Justly and proportionately
Strike-out
R - no reasonable grounds for bringing or defending claim
O - obstruct just disposal of proceedings
A - abuse or court’s processes
D - directions, practices and court orders not complied with
