Advocacy Tests (Mixed) Flashcards
Learn the Text of the Test
Provide the test for
summary judgment
Disputes - Advocacy
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.
Think: No…. Prospect of Success and Compelling Reason
Provide the test for
setting aside default judgment
Disputes - Advocacy
(1) MANDATORY: Must Set Aside
……
(2) DISCRETIONARY: May Set Aside:
(a) Which Ground:
- Real prospect of successfully defending; or
- Some other good reason why;
(b) Promptness of Application; and
(c) Apply Denton: Seriousness, Reason, Compliance and efficient litigation (3.9)
Provide the test for
Strike Out
Disputes - Advocacy
(a) No reasonable grounds for bringing or defendinga claim; or
(b) Abuse of the process of the court; or
(c) Failure to comply with a rule, practice direction or court order
Provide the test for
Interim Payment Application
Disputes - Advocacy
(1) Apply the relevant condition:
- D has admitted liability to pay damages
- C has obtained judgment
- C would obtain judgment for a substantial amount of money
(2) Ensure that it is a reasonable proportion of the likely amount
(3) If relevant, consider contributory negligence, set-off and counterlciam.
Provide the test for
Interim Injunction Application
Disputes - Advocacy
(1) Granted where it is just and convenient (s.37 Senior Courts Act 1981).
(2) American Cyanamid’ guidelines:
- There is a serious question to be tried
- Damages would not adequate
- Balance of convenience
(3) Equitable Remedy factors:
- Practical purpose?
- Clean hands?
- Excessive delay?
(4) Applicant gives undertaking
Provide the test for
Freezing injunction application
Disputes - Advocacy
AKA Mareva Order
The purpose of a freezing order is to prevent a defendant from moving, hiding or otherwise unjustifiably dissipating those assets
Applying guidlines set out in Mareva:
(1) Merits: A good arguable case
(2) Assets in jurisdiction: Respondent holds assets against which a relevant judgment could be enforced within the jurisdiction
(3) Risk of Dissipation: Real risk that the respondent may dissipate those assets
(4) The order is just and convenient.
Provide the test for
search order application
Disputes - Advocacy
A court order allowing the claimant access to the defendant’s premises for the purpose of searching for an seizing evidence.
(1) Applicant has an extremely strong case; and
(2) Clear evidence that the respondent has the relevant item; and
(3) Real possibility that R will destroy or hide it the item; and
(4) Full and frank disclosure by the claimant of all matters which are material to the case; and
(5) Proportionality
Provide the test for
an unless order application
Disputes - Advocacy
Applicant must show that
- The other party is in breach of a court order and
- They have complied with the order
Provide the test for
a stay of proceedings
Disputes - Advocacy
(1) Court has discretionary case management power in line with the Overiding Objective
(2) Show why the stay necessary
(3) Show the stay is it in the interest of the Overiding Objective
(4) Show that the application made promptly as soon as the need for a stay arose
Provide the test for
standard disclosure
Disputes - Advocacy
(1) Is it a document ?
(2) Is/was it in the party’s control?
(3) Does it fall within standard disclosure?
a. The documents on which they rely; and
b. The documents which
- Adversely affect their own case
- Adversely affect other party
- Support another party’s case;
Provide the test for
specific disclosure
Disputes - Advocacy
(1) Would it need to be disclosed under standard disclosure
(2) Would it be reasonable and proportionate to order specific disclosure:
Argument in reference to the overriding objective
Provide the test for
pre action disclosure
Disputes - Advocacy
Court may order where:
(1) R Likely Party: R likely to be a party to subsequent proceeding; and
(2) A Likely Party: Applicant likely to be party to proceedings
(3) If proceedings had started, R’s duty by way of standard disclosure would extend to scope applicant request
(4) Pre-action disclosure desirable in order to:
- Dispose fairly anticipated proceeding.; or
- Assist dispute to be resolved; or
- Save costs
Provide the test for
a Norwich Pharmacal Order
Disputes - Advocacy
(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 more than a mere witness/bystander and is able to (or likely) provide information needed
(4) It is necessary and proportionate
Provide the test for
non party disclosure
Disputes - Advocacy
(a) Support: Documents likely to support applicant’s case or adversely affect the case of one of the other parties to the proceedings and
(b) Necessity: Necessary in order to dispose fairly of claim or tosave costs
(3) Consider Overriding objective
Provide the test for
security of costs application
Disputes - Advocacy
(1) One of he prescribed conditions:
- C Outside jurisdiction
- C a company and reason to believe they will be unable to pay Ds costs if ordered
- C has changed address to evade consequences of litigation
(2) Justness: Consider ability of R to comply with an order.
(3) Application on amount of security considering likely costs and any deductiins.
Provide the test for
jurisdiction of the court
Disputes - Advocacy
Provide the test for
appealing (first attempt) civil disputes
Disputes - Advocacy
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
Provide the test for
appealing (second attempt) civil disputes
Disputes - Advocacy
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
Provide the test for
an extension of time
Disputes - Advocacy
The court should deal with the case, including this application, in a way which is just and at proportionate cost
This includes enforcing compliance with the directions.
The court should not allow an extension of time which will imperil a hearing date or otherwise disrupt the proceedings.
Provide the test for
relief from sanction
Disputes - Advocacy
Denton 3 stage test:
- Whether the breach has been serious or significant?
- Reason for the Default
- All the circumstances of the case, including:
- CPR 3.9 - Efficient Litigation
- CPR 3.9 - Compliance
- Promptness of application
- Proportionality
Provide the test for
objecting to application to remand D into custody prior to conviction
Criminal - Advocacy
(1) s.4 Bail Act presumption applies in favour of bail - it is for the Crown to apply to remand D. Starting point is unconditional bail unless it is subject to an exception
(2) To refuse bail the court has to be satisified there are substantial grounds for believing an objection gateway
(3) Before refusal, make application for conditional bail.
Provide the test for
objecting to application to remand D into custody POST to conviction
Criminal - Advocacy
There is no right to bail.
Grant of bail is at the court discretion
Provide the test for
a submission of no case to answer
Criminal - Advocacy
Apply the R v Galbraith test
(1) If there is no evidence that the crime alleged has been committed by the defendant, - the judge will stop the case; OR
(2) The prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is the judge’s duty, upon a submission being made, to stop the case.
