CIVIL ADVOCACY Flashcards
What is the test for summary judgment?
PART 24 CPR.
DISCRETIONARY
Rule 24.2 states that the court may give a summary judgment on the whole of the claim or a particular issue if:
a) It considers that:
i) The claimant has no real prospect of succeeding on the claim; or
ii) The defendant has no real prospect of successfully defending the claim; and
b) There is no other compelling reason why the case should be disposed of at trial.
What are the grounds for an interim payment?
GROUNDS – set out by Part 25 CPR.
Must be satisfied before the court will make an interim payment.
These are:
a) The defendant has admitted liability; or
b) The claimant has obtained a judgment against the defendant for damages to be assessed or for a sum of money; or
c) The court is satisfied that, if the case went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs).
What is an interim payment?
PART 25 CPR
= enables a claimant who has a strong case on liability to avoid the financial hardship and/or inconvenience that might otherwise be suffered because of any delay during the period between the start of the claim and its final determination.
What are the grounds for an interim injunctions?
GUIDELINES FOLLOWED:
American Cyanamid Co (No 1) v Ethicon Ltd [ 1975] UKHL 1.
The court will determine whether:
a) There is a serious question to be tried.
b) Damages are an adequate remedy for either side.
c) The balance of convenience lies in favour of granting or refusing the injunction; and
d) Whether there are any special factors.
Is an interim injunction a discretionary remedy?
YES - Discretionary remedy – only awarded when damages are not an adequate remedy for the applicant.
What are the grounds for striking out a statement of case?
RULE 3.4 (2) CPR
The court may strike out a statement of case if it appears to the court:
a) That the statement of case discloses no reasonable grounds for bringing or defending the claim.
b) That the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
c) That there has been a failure to comply with a rule, practice direction or court order.
What should be considered for a relief from sanctions application?
Denton v TH White Ltd [2014]
(a) First stage is to identify and assess the seriousness or significance of the relevant failure. If a breach was not serious or significant, relief is usually granted.
(b) The second stage is to consider WHY the failure or default occurred.
(c) The third stage is to evaluate all the circumstances of the case so as to enable the court to deal justly with the application. Factors would include whether the trial date could still be met and the effect the failure to comply and the granting of relief would have on each party.
What are the grounds for security for costs?
PART 25 CPR
The court has a discretionary power to make an order for security for costs if:
a) It is satisfied, having regard to all the circumstances of the case, it is just to make such an order; and
b) One or more of the conditions in Part 25 applies.
CONDITIONS IN PART 25:
* Claimant is resident outside a 2005 Hague Convention State. (not EU or UK)
Individuals – where they habitually live.
Companies – where their central control and management are located.
* Claimant is an impecunious company.
(Unable to pay the defendant’s costs if ordered to do so. Evidence of the company’s financial assets + total costs of litigation will be essential).
* Claimant has taken steps to make enforcement difficult.
JUSTNESS
The court must also be satisfied that it is just to make the order and the following factors are considered important:
a) The strength of the claim and the defence – less likely the defendant is to win at trial less justified in seeking security.
b) The claimant’s ability to provide security.
c) The causes of the claimant’s impecuniosity – claimant may persuade the court their poor finances are caused by or contributed to by the defendant’s behaviour.
d) Property within the jurisdiction – where the application is made against a claimant resident outside the EU, the court is unlikely to grant security if they have sufficient assets within the jurisdiction that would be available to meet the defendant’s costs.
e) The timing of the application – order applied for as soon as practicable.
What should be considered for specific disclosure?
CPR, r 31.12
- Once a list of documents has been served, the contents should be scrutinised carefully.
- If the disclosure appears inadequate, an application may be made for specific disclosure under CPR, r 31.12.
- This could request an order that the party:
a) Carry out a more extensive search; and
b) Disclose any further documents located as a result of that search; or
c) Disclose specific documents that the party would have expected to see.
What are the grounds for SETTING ASIDE default judgment?
SETTING ASIDE DEFAULT JUDGMENT
CPR Part 13 – 2 GROUNDS
(1) Mandatory Ground
- The court is obliged to set aside a default judgment if it was wrongly entered.
- This would occur where judgment has been entered too early before the time for filing an acknowledgment of service or a defence (whichever is applicable) expired.
- or because the claim has already been paid in full.
(2) Discretionary Ground
- The court also has the power to set aside default judgment in circumstances where D:
(a) Has a real prospect of successfully defending the claim; or
(b) There is some other good reason why D should be allowed to defend the claim.
What factors are taken into account for track allocation?
ALLOCATION TO A TRACK
CPR Part 26
Other factors taken into accounts:
* Remedy sought.
* Complexity of facts, law, and evidence
* Number of parties
* Value of any counterclaim
* Amount of oral evidence
* Importance to non-parties
* Views and circumstances of parties.
What factors are ignored for track allocation?
CPR Part 26
Amounts disregarded:
* Interest
* costs
* Contributory negligence
* Any sum not in dispute.
What is the difference between the tracks?
Small claims track = least formality to recognise the low value of the claims and the fact they are often conducted by litigants in person.
Claims for £10,000 or less.
Usually deals with consumer disputes, disputes about ownership of goods and those between a landlord and tenant. Also, lower value personal injury claims.
Fast track = the standard route along which most cases proceed.
Claims valued between £10,000.01 and £25,000 inclusive.
Court will also take into account the likely length of the trial before making a final decision on allocation.
Only those cases where the trial is expected to last no longer than one day are generally suitable for the fast track.
Multi-track = incorporates greater flexibility to reflect the variety and complexity of these cases.
Claims for more than £25,000.
Enormously wide variety of cases – from fairly straightforward to the most complex and weighty matters involving claims for millions of pounds and multi-party claims.
