Civil Advocacy Tests Flashcards
What are the 8 most likely applications that could arise in the dispute advocacy assessments?
- Default judgment
- Summary judgment
- Interim payment
- Interim injunction
- Relief from sanctions
- Security for costs
- Strike out
- Unless order
What is the overriding objective under CPR Part 1.1 and how does it apply in dispute resolution?
The Overriding Objective (CPR 1.1) is to enable the court to deal with cases justly and at proportionate cost, meaning:
- Ensuring equal footing between parties
- Saving expense
- Dealing with cases fairly, expeditiously, and proportionately (considering money, importance, complexity, and party resources)
- Allocating court resources appropriately
What are the overriding objectives under the CPR in parts 1.2, 1.3 and 1.4 and how do they apply in dispute resolution?
CPR 1.2: The court must apply the overriding objective when interpreting rules.
CPR 1.3: The parties have a duty to help further the objective.
CPR 1.4: Courts must actively manage cases, including:
- Encouraging ADR and cooperation
- Identifying and narrowing issues early
- Setting timetables
- Using tech efficiently
- What is the ground under which default judgment must be set aside?
- What is the ground under which default judgment may be set aside?
- Mandatory Ground
- The court is obliged to set aside a default judgment if it was wrongly entered.
Examples of judgment being wrongly entered:
- Judgment has been entered too early, e.g. before the time for filing an ackowledgment of service or a defence has expired.
- The claim has already been paid in full
- Discretionary Ground
- The defendant has a real prospect of successfully defending the claim;
OR
- There is some other good reason why the defendant should be allowed to defend the claim i.e. the defendant was ill or away on holiday so could not repsond within the time constraints.
*The court will also take into acount PROMPTNESS of the D’s application to set aside, so it is essential the D files their application as soon as they become aware of the default judgement to comply with the overriding objectice of ensuring cases are dealt with expeditiously and fairly. *
What is the test for summary judgment?
The court may give summary judgement on the whole of the claim or on an issue if it considers;
- A party has NO REAL PROSPECT of succeeding on the claim, defence or issue.
AND
- There is NO OTHER COMPELLING REASON, why the case or issue should be disposed of at a trial.
- The compelling reason limb refers to whether the court has all the information it needs to make a decision on the merits of the underlying claim. If the court has all this information then there’s no reason to waste the court’s time at trial if it can make that call now.
What 3 factors (Denton v White factors) must a party address when using evidence to support their application to be granted relief from sanctions?
- Assess the seriousness or significance of the breach. If a breach is NOT serious or significant relief is usually granted.
- Give reasons for the breach, i.e. say why it occurred.
- Evaluate all circumstances of the case so the application is dealt with fairly.
- Was the sanction imposed by the court proportionate to the breach?
- How long after the breach occurred did the applicant apply for relief from sanction?
- Has the applicant committed any other breaches?
- Consider the effect the failure to comply and the granting of relief would have on each party.
Consider overriding objective.
What grounds must be satisfied before the court will make an interim payment?
- The defendant has admitted liability
- The claimant has obtained a judgment against the defendant for a sum of money to be paid or for damages to be assessed.
- The court is satisfied that if the case went to trial, the claimant would obtain judgment for a substantial sum (other than costs).
For this last ground the burden on the applicant is high, they must prove on the balance of probabilities they WILL succeed if the claim were to proceed to trial.
What 4 things must the applicant for an interim payment include in their application?
- Explain what the payment will be used for.
- Request a specific sum.
- Show that the sum is a reasonable proportion of the likely damages.
- Consider contributory negligence, counterclaims etc.
When determining whether to grant an interim injunction, what 4 things will the court consider?
When deciding whether to grant an interim injunction the court will determine;
- If there is a serious question to be tried.
- Whether damages are an adequate remedy for either side to resolve the dispute.
- Whether the balance of conveniences lies in favour of granting the injunction to the applicant or refusing the injunction.
- The applicant must have ‘clean hands: the applicant has not unreasonably delayed matters
- Whether there are any special factors to consider
What can an applicant offer to support an application for interim injunction?
- An undertaking in damages
- This is a promise to compensate the other side if it turns out the injunction should not have been granted.
What are 5 grounds (one of more which must be satisified) when applying for a security for costs order?
Only whom can apply for security for costs?
- The claimant is a resident outside a 2005 Hague Convention State-
- The D may apply for an order for security of costs where the claimant (whether an individual or a company) is a resident outside the jurisdiction (England and Wales).
- The claimaint is also not resident in a state bound by the Hague Convention (which includes the EU and the UK).
- For individuals this is where they normally and habitually live; whereas for companies it is where their central control and manamgement are located.
- Claimant is an impecunious COMPANY
- D must establish there is reason to believe the claimant will be unable to pay the D’s costs if odered to do so.
- Evidence of the company’s financial assets + likely total costs of litigation will be essential.
- Claimant has taken steps to make enforcement difficult
- The D must demonstrate that the C has taken steps in relation to their assets such that if they lose the case and a costs order is made against them the order will be difficult to enforce.
- Examples of circumstances that could be seen as a C making enforcement difficult include- C relocating to another country, C moving assets out of the juridiction
- The claimant has changed address, failed to provide an address or given an incorrect address to evade the consequences of litigation
- Justness
- The court must be satisfied that it is JUST to make the order.
Only a DEFENDANT can apply for a security of costs order as a claimant is free to discontinue proceedings at any time.
In a security for costs application, when a court is deciding whether it is JUST to grant a security for costs order, what factors will they evaluate (5)?
- The strength of the claim and the defence:
- If the D isn’t particularly likely to win at trial, they will be deemed less jusitified in seeking security.
- The claimant’s ability to provide security:
- If a claimant has a reasonable prospect of success, the courts will be more reluctant to make an order for security which the claimant will not be able to comply with as this will stifle the claim.
- Reasons for the claimant’s impecuniosity:
- A claimant may be able to persuade the court that the reason for their impecuniosity is caused or contributed to by the D’s behaviour.
- Property within the jurisdiction:
- If an application is made against a claimant living outside the EU, the court is unlikely to grant a security for costs order if they have sufficient assets within the jurisdiciton that would be available to meet the D’s costs.
- The timing of the application
- The order should be applied for as soon as possible.
What are the 3 grounds (one of which must be satisfied) in an application to strike out the other party’s case?
- The statement of case discloses no reasonable grounds for bringing or defending a claim.
- The D’s statment of case contains a bare denial: they simply state the C’s allegations are completely untrue but have not actually explained why
- The C’s particulars of claim may not be detailed enough
- The claim or defence is an abuse of court process.
- The other party has failed to comply with a rule, practice direction or court order.
What two things must you demonstrate when applying for an unless order?
- The other party has failed to comply with a previous court order/rule, that the applicant has complied with.
- E.g. the applicant exchanged witness statements by the deadline but the other party failed to do the same
- A sanction like striking out the claim is a proportionate response to the breach/in the interests of the overriding objective, if the unless order is not complied with.
What are the 3 things to show in an application for track allocation?
- Set out the facts of the claim
- Apply the facts to the track allocation factors e.g. value of claim, complexity of claim
- Conclude with a track request
What two things must be shown in an application for adjournment/stay?
When must an application for adjournment/stay of court proceedings be made?
- Why the adjournment/stay of court proceedings is necessary
- Why the adjournment/stay is in the interests of the overriding objectives.
Promptly, an applicant must show they acted promptly.
For the applications where you have done something wrong, e.g. set aside default judgment and relief from sanctions, what should you do at the beginning of your substantive submissions?
Acknowledge the failure, e.g. not responding on time, and apologise to the court.
You are an officer of the court, and it is expected you will expressly acknowledge the failure to comply with court directions.
