Court Applications Flashcards
Summary judgment
No real prospect of success
No other compelling reasons why the case should proceed to trial
If the claimant applies before the defendant files, the defense, the defendant need not file a defense until after the summary judgment hearing, although the defendant may want a defense to witness statement, opposing the application to help defeat the application
Include written evidence to support the application serve within 14 days before the hearing and response within seven days before the hearing
Can be combined with emotion, strike out the claim
Default judgment
Court may enter a default judgment against the defendant if the defendant fails to file a defense within the time limits
Setting aside default judgment
Discretionary
- Acted promptly
- They have a real prospect of successfully defending
- There is some other good reason why the judgment should be set aside
Mandatory
- judgment wrongly entered into (time for filing the acknowledgment not yet expired)
- the claim has already been paid or settled
- request for time to pay pending
- other interim application pending
Application to strike out claim
No reasonable grounds for making or defending the claim
The statement of case is an abuse of the courts process
There has been a failure to comply with a rule process direction or order
Interim payment
Cannot cause an injustice
- The defendant has admitted liability
- The claimant has obtained judgment, but the sum to be paid is not yet assessed
- The court satisfied that if action proceeds to trial, the claim it would obtain judgment for a substantial sum
Invite the other party to make an interim payment before making application
Acknowledgment time has passed
Support the application with evidence within 14 days before the hearing
Award to reasonable proportion of the likely amount
Consider contributory negligence, counterclaims and set-off
Interim injunction (mandatory or prohibitory)
Enforceable through contempt proceedings (contempt - up to two years of imprisonment/removal)
Can be obtained without notice of the hearing to the other party
Discretionary grounds
- Serious question to be tried
- Damages would not be an adequate remedy
- The balance of convenience lies in favor of injunction
- Cross undertaking in damages if appropriate
Discharge of an injunction
The applicant fails to provide all relevant information (I)
The applicant failed to comply with the terms of the injunction (T)
The facts don’t support the injunction
The injunction is oppressive (O)
There has been a material change in circumstances (C)
The claimant failed to prosecute the claim with due speed after obtaining the injunction (S)
COSTI
A freezing injunction
Applications can be made only to the High Court
The applicant must prove
- there is a justifiable cause of action
- The claimant has a good, arguable case
- The defendant has assets within the jurisdiction
- there is a real risk that the defendant may dispose those assets
Payment of damages, if the injunction was in providently granted
Binding on all parties that have knowledge of it
The enjoined party can seek a discharge by offering security for the claim or showing the injunction was obtained on the basis of material non-disclosure
Search order
If it is clear that the defendant will not obey rules regarding disclosure or is trying to destroy incriminating documents or property
Obtained only from the High Court
Grounds
- A strong prima facie case on merits
- reasons for claiming the other party might hide or destroy evidence
- clear evidence the property or documents are in the enjoined party’s possession
Independent supervising solicitor will usually be appointed
The claimants solicitor will give an undertaking to return the original documents within two days and secure the property taken
Security for costs
Discretionary when
- party is a company or other body
- Reason to believe that it will be unable to pay the defendant’s costs
- Change of address with a view of evading the consequences of litigation
OR
- Failed to provide an address or gave an incorrect address on the claim form
- Is acting as a nominal claimant, and there is a reason to believe she will not be able to pay costs
- has taken steps in relation to his assets that would make it difficult to enforce an order for costs
Directions as to inspection of documents
Duty to inform the opposing side of the existence of all documents, relevant to the litigation
Documents that
- intend to rely on
- adversely affect either party’s case
- support the other party’s case
Within the party’s control (even those it used to have)
Reasonable and proportionate search for documents
A disclosure list with three sections
28 days from the directions order to serve (7 days to inspect)
Application for specific disclosure
Make a written request for the information if there is a reason to believe the party did not make adequate disclosure
The request should include
- A description of the documents and why they are relevant
- Why it is reasonable and proportionate for the documents to be disclosed
- reasons to believe they exist
- Safeguards (e.g. protection of trade secrets)
Witness summons
Request the court to issue the summons at least seven days before the hearing
The witness is entitled to contact money for travel and lost time, and the money must be sent along with the summons request
A witness who receives the summons fails to attend, they will be held in contempt of court
Directions as to expert evidence
Derived from special knowledge, skills or training that is not in the ordinary experience of the judge
The expert must be reasonably certain as to their opinion, inference or conclusions
Duty to exercise, independence, integrity, and impartiality
Oral evidence of trial if
- likely to impact the outcome
- otherwise injustice
- assists the judge
- costs not disproportionate
Questions within 28 days of the report
Unless order
Discretionary if the applicant can show
- compliance
- other party in breach
- In the interest of the overriding objective to enforce court orders and deal with cases fairly, justly, and proportionate costs
