Civil Advocacy Flashcards
Summary Judgement Grounds
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.
Relief from Sanctions: 3 part test
Denton 3 stage test:
1. Whether the breach has been serious or significant?
2. Why the default occurred?
3. All the circumstances of the case, including:
a. CPR 3.9 - 2 conditions.
b. Promptness of application
c. Previous compliance
d. Consider proportionality
Grounds to Strike Out a Claim
CPR 3.4(2)
(a) no reasonable grounds for bringing or defending a claim
(b) abuse of the process of the court
(c) failure to comply with a rule, practice direction or court order
Interim Payment Grounds
CLAIMANT! CPR 25
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.
Prohibitory Injunction Grounds
- Just and convenient (s37 Senior Courts Act 1981).
- ‘American Cyanamid’ guidelines (3 steps).
- Apply equitable and discretionary remedy factors.
- Applicant gives undertaking!
Freezing Injunction Grounds
s37 Senior Courts Act 1981 & CPR 25.1
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.
4. Just and convenient.
5. Other factors.
6. Applicant gives undertaking!
Grounds for Discharging an Injunction
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
Grounds for getting an Unless Order
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
Track Allocation Application
CPR 26.7
1. Set out facts of case
2. Apply CPR 26 factors.
3. Conclude with track recommendation.
Grounds for documents falling within Standard Disclosure
- Is it a document (CPR 31.4)?
- Is/was it in the party’s control (CPR 31.8)?
- Does it fall within standard disclosure (CPR 31.6)
a. The documents on which they rely; and
b. The documents which
i. Adversely affect their own case
ii. Adversely affect another party’s case; or
iii. Support another party’s case; and
c. Documents which they are required to disclose by a relevant practice direction
Grounds for Ordering Specific Disclosure
- Would it need to be disclosed under standard disclosure anyway
- Would it be reasonable to order specific disclosure
a. Dealing with central or peripheral issue
b. Would it be difficult for the other party to carry out
Argument in reference to the overriding objective
When will court order pre-action disclosure
CPR 31.16(3) Court may order where:
1. R likely to be a party to subsequent proceeding +
2. 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 seeds (can’t be wider than stand. d) +
4. Pre-action disclosure desirable in order to:
a. Dispose fairly anticipated proceeding.; or
b. Assist dispute to be resolved w/o lit.; or
c. Save costs
Grounds for a Norwich Pharmacal Order
CPR 31.18
1. Conditions for Norwich Pharmacal relief:
a. Wrong (arguably) carried out and
b. Need for order to enable action to be brought against ultimate wrongdoer and
c. Person against whom order sought is:
i. More than a mere witness/bystander and
ii. Be able to (or likely) provide info
2. Necessary and proportionate
3. Costs
When will a court order non-party disclosure
CPR 31.17 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
3. Overriding objective
4. Costs
Security for costs: Grounds
- Justness: Having regard to all the circumstances it is just to make an order - CPR 25.13(1)(a)
- 1 or more of the 4 prescribed conditions are satisfied - CPR 25.13(b) and (2)
- [Application on amount of security - consider CPR 25.12(3) factors]
First Appeal Grounds
- 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 - Permission (CPR 52.6)
a. Real prospect of success; or
b. Some other compelling reason
Grounds for Second Appeal
- 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 - Permission (CPR 52.7)
a. Real prospect of success and raise an important point; or
b. Some other compelling reason
Application to rely on expert evidence
- 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 - 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
Interest on Damages:
No Provision in Contract
Commercial Debt
- If there is no provision in the contract for interest, interest may be claimed under the Late Payment of Commercial Debts (interest) Act 1998, which gives a statutory right to interest on late paid debts
- Only applies to commercial debts (not damages claims or specified amount owed to a consumer)
- Relevant rate of interest is 8% per annum above BoE base rate on the date the debt became due for payment
- Claimant is entitled to a small, prescribed amount of statutory compensation for the inconvenience of having the recover the debt
Interest:
No Provision in Contract
NOT commercial debt
County Court: s 69 County Courts Act 1984
High Court: s35A Senior Courts Act 1981
Interim Costs Orders
[Named Party]’s Costs
- Party named in order is entitled to their costs of the interim application, whatever the cost order is in the proceedings
- normally summarily (instantly) assessed and ordered to be paid within 14 days (eg. order for ‘claimant’s costs’)
- Apply when there is a clear winner
Interim Costs orders
Costs in the Case
- No party is named and neither can recover their costs at this stage
- will only become apparent who will pay the costs of the interim application at the conclusion of the proceedings (ultimate loser of litigation will also be liable for these costs)
- Applies when the court makes a conditional order which they do not adhere to (eg. defendant may continue to defend if they file a defence within 14 days and they fail to do so, then the claimant receives costs for IA)
