Advocacy Tests

Question 1

Summary judgment

Answer 1

CPR 24.2
1. No real prospect of succeeding in the claim or defence and
2. No other compelling reason why the case or issue should be disposed of at trial.

Question 2

Setting aside default judgment

Answer 2

1. CPR (13.2 mandatory OR 13.3 discretionary) grounds
2. Promptness - CPR 13.3(2)
3. Denton (relief from sanctions) - 3 stage test

Question 3

Strike out

Answer 3

Power to strike out the whole or part of a statement of case which:

1) Discloses no reasonable grounds for bringing or defending a claim - CPR 3.4(2)(a)
* no claim or defence as a matter of law.
* CPR 3A - “The facts set out in the claim would not amount in law as a defence to the claim even if true.”
or
2. Is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings - CPR 3.4(2)(b),
* Not defined in the CPR but Lord Bingham said it is “using that process for a purpose or in a way significantly different from it ordinary and proper use” (Attorney General v Barker, 2000)
or
3. That there has been a failure to comply with a rule, practice direction or court order - CPR 3.4(2)(c).
* E.g. Late service and exchange of docs.

CPR 3.5 - power of the court to make judgment without trial after striking out. * A party may obtain judgment with costs by filing a request for judgment - CPR 3.5(2).

Question 4

Interim payment

Answer 4

1. Apply the relevant condition in CPR 25.7(1) (only need 1).

a) defendant has admitted liability to pay damages or some other sum of money
b) claimant has obtained judgment
c) claimant would obtain judgment for a substantial amount of money

2. Apply CPR 25.7(4) - reasonable proportion of the likely amount
3. Apply CPR 25.7(5) IF RELEVANT
   a) contributory negligence
   b) set-off or counterclaim.

Question 5

Prohibitory injunction

Answer 5

Overaching consideration is whether it would be Just and convenient (s37 Senior Courts Act 1981).
* In interpreting this, taking into account ‘American Cyanamid’ guidelines (3 steps).
* Apply equitable and discretionary remedy factors.

Applicant gives undertaking!

Question 6

Freezing injunction

Answer 6

Just and convenient (Senior Courts Act 1981)
1. Good arguable case.
2. Assets belonging to or under their control within the jurisdiction.
3. Real risk that the respondent may dissipate those assets.

Applicant gives undertaking!

Question 7

Unless Order

Answer 7

CPR 3.1(3) - applicant must show that
1. The other party is in breach of a court order and
2. They have complied with the order

Question 8

Security for costs

Answer 8

1. Justness: Having regard to all the circumstances it is just to make an order - CPR 25.13(1)(a)
2. 1 or more of the 4 prescribed conditions are satisfied - CPR 25.13(b) and (2).
3. [Application on amount of security - consider CPR 25.12(3) factors]

Question 9

Security for Costs - prescribed conditions to be satisfied

Answer 9

1) Resident outside the jurisdiction of Hague Convention.

2) Impecunious company - reason to believe they will be unable pay D’s costs.

3) Claimant has changed address since claim started with view to evade consequences of litigation.

4) Claimant failed to give an address or put an incorrect address on the claim form.

5) Claimant moving assets - making it difficult to enforce judgement.

6) C is acting as a nominal claimant and there is reason to believe he will be unable to pay D’s costs, rendering it just to make such order.

Question 10

Security of costs - justness of making order

Six factors

Answer 10

Balance C’s right to a fair trial (ECHR Art.6) and access to justice against the defendant being at risk of not recoving its costs.

Relevant factors (Sir Lindsay Parkinson and Co Ltd v Triplan Ltd)
* Admission of liability on D’s part.
* Delay in making an application
* Claimant’s claim has little prospect of succeeding.
* D is responsible for C’s financial difficulties.
* Claimant is acting in good faith and the claim is not a sham.
* Whether application for security is being used oppresively by the defendant to stifle the claimant’s claim.

Question 11

Interim injunction

Answer 11

1) Granted where it is just and convenient.

2) Apply the ‘American Cyanamid’ guidelines:

Step 1: is there a serious question to be tried?
- Injunction is a cause of action not a remedy.
- applicant must have a pre-existing cause of action (State the cause of action).
- Not ‘frivolous or vexatious’.

Step 2: Damages would not be an adequate remedy for the loss.
i. Damages for the applicant?
If applicant could be adequately compensated for damages by loss caused by refusal to grant → court generally refuses to grant.

ii. Damages for the respondent?If respondent could be adequately compensated by applicant if transpires that injunction was wrongly granted → injunction should be granted.

Step 3: The balance of convenience lies in favour of the injunction.
i. Consider a broad range of factors to ascertain where the lesser risk of injustice lies.

3) Apply Equitable and discretionary remedy factors.
- clean hands.
- Promptness in applying
- Not granted where it would serve no practical purpose.

Question 12

Setting aside default judgement - mandatory grounds

Answer 12

i. Judgement was entered before the deadline for filing the acknowledgement or service or defence had expired.
OR
ii. Summary judgment or strike out had been applied for before judgment was entered.
OR
iii. The defendant had, in fact, satisfied the whole of the claim before judgment was entered or admitted the claim or required time to pay.

Question 13

Responding to Proceedings

Setting aside default judgement - discretionary grounds

Answer 13

(a) real prospect of successfully defending;
- ‘Real prospect’ = more than merely arguable.
- No real prospect = fanciful, imaginary or false.

OR

(b) some other good reason why –
- the judgment should be set aside or varied; or
- the defendant should be allowed to defend the claim.

EXAMPLES: ill health caused delay, further evidence is required, public interest in trial being heard.

Question 14

Appeals

First Appeal

Answer 14

1. Ground (CPR 52.21(3))
   - Wrong (error in law, fact or exercise of court’s discretion)
   OR
   - Unjust because of a serious procedural or other irregularity in proceedings
2. Permission (CPR 52.6)
   a. Real prospect of success; or
   b. Some other compelling reason

Question 15

Second Appeal

Answer 15

1. Ground (CPR 52.21(3))

a. Wrong (error in law, fact or exercise of court’s discretion)
OR
b. Unjust because of a serious procedural or other irregularity in proceedings.

2. Permission (CPR 52.7)

a. Real prospect of success and raise an important point of principle or practice; OR
b. Some other compelling reason

Question 16

Disclosure

Norwich Pharmacal Order

Answer 16

CPR 31.18

1) Wrong (arguably) carried out; and

2) Need for order to enable action to be brought against ultimate wrongdoer; and

3) Person against whom order sought is:
* a) More than a mere witness/bystander and
* B) Able to (or likely) provide information; and

4) Necessary and proportionate in all circumstances (Ashworth Hospital Authority v MGN Ltd)

Question 17

Non-party disclosure

Answer 17

Court may order where:

1) Docs likely to support applicant’s case or adversely affect the case of one of the other parties to the proceedings:
and
2) Necessary in order to dispose fairly of claim or to save costs .

Also consider the Overriding Objective.

Question 18

Disclosure

Specific Disclosure

Answer 18

CPR 31.12

1) Meets test for standard disclosure - further applicant’s case or undermine respondent’s case; OR

2) Lead to a trail of enquiry revealing information to could lead to such disclosure.
* Regard to - (i) whether request deals with a central or peripheral issue; and (ii) difficulty/extent of burden on other party to comply.

3) Argument in reference to the overriding objective

• CPR 31.12(2) - include an order to disclose documents or clases of couments.
• 31A PD 5.2 -
• Court will take into account all the circumstances in the case and
• in particular overriding objective; and
• if court is satisfied that party against whom specific disclosure is sought has failed to adequately comply with its initial obligations for disclosure, it will usually make such order as is necessary to ensure those obligations are properly complied with.

Question 19

Legal advice privilege

Answer 19

1. A document
2. Which is a confidential
3. Communication between lawyer and client

Question 20

Litigation privilege

Answer 20

1. A document
2. Which is a confidential
3. Communication between lawyer and client or between one of them and a third party
4. Dominant purpose to obtain legal advice, evidence or info for use in the conduct of litigation which at the time was reasonably in prospect

Question 21

W/o privilege communications

Answer 21

1. A document
2. Purpose is a genuine attempt to settle a dispute

Question 22

Extension of Time

Answer 22

The court should deal with the case, including this application, in a way which is just and at proportionate cost (CPR 1.1). This includes enforcing compliance with the directions.

The court should not allow an extension of time which is unreasonable. The court should not allow an extension of time which will imperil a hearing date or otherwise disrupt the proceedings.

Question 23

Permission to rely on expert evidence

Answer 23

1. Evidence is admissible
   * a. Assist the court in its task +
   * b. Witness has knowledge and experience +
   * c. Witness is impartial
   * d. Reliable body of knowledge/experience
2. Reasonably required to resolve the proceedings
   * a. Necessary, rather than merely helpful.
   * b. If not necessary, will it assist judge.
   * c. If reasonably required to determine issue.

Question 24

Discharge an injunction

Five Factors

Answer 24

One of the following reasons:
* Offering security for the claim
* Showing that the injunction was obtained based on material non-disclosure
* Failure of applicant to comply with terms on which the injunction was granted
* Injunction is oppressive
* Significant delay

Question 25

Freezing Injunction - real risk

Answer 25

Need to demonstrate a sufficient 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 (confirmed in Les Ambassadeurs Club Ltd).

4) There must be ‘solid evidence’ to support the assertion (confirmed in Niedersachsen).

Question 26

Freezing order - assets within the jurisdiction

Answer 26

The Defendant/Respondent has assets belonging to or under their control within the jurisdiction.

a) Show that the respondent holds assets against which a relevant judgment could be enforced.
b) Paragraph 6 of the standard form freezing order prevents a respondent from removing or disposing of or dealing with assets, “whether or not they are in his own name and whether or not they are jointly owned”, as well as any assets “which he has the power, directly or indirectly, to dispose of or deal with as if they were his own”.
c) Assets include trusts and companies

Question 27

Freezing order - good arguable case

Answer 27

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.

Question 28

Search Order

Answer 28

1) An “extremely strong” prima facie case
* (eg) the defendant is selling the claimant’s intellectual property and there is plenty of evidence - point our what the evidence is!!!

2) Potentially very serious damage to the claimant.
* (eg) the cost of losing unique intellectual property and going out of business.

3) Clear evidence that the defendant actually has the relevant item(s) in their possession and a real possibility that they will destroy or hide it.
* This “real possibility” can be inferred from the defendant’s general character - is the defendant a dishonest person?
* If the defendant is apparently in breach, secretive, guarded, and lies, then the courts may infer that it is likely that evidence might be destroyed.

4) Full and frank disclosure by the claimant of all matters which are material to the case.

5) Proportionate?
* Given that it is so serious, a search order must be a proportionate response to a claim.