Dispute Flashcards
application for default judgement - set it aside structure
1) what ground (mandatory or discretionary)
a) if mandatory set out the deadlines and how they were respected
- apply Denton v White test
- overriding objective
b) if discretionary
- does it have a good prospect of success
any other reason why?
- perhaps both at the same time
- talk about promptness of application
- overriding objective (for case to be dealt with fairly and at proportionate cost)
- Denton v White
application for default judgement structure
no real prospect of success (give evidence based on facts) or some other compelling reason (usually because was late, no communication)
- always tie in with overriding objective
in criminal advocacy there is no bundle
just ask judge whether he has all docs
(in dispute you ask whether has the bundle)
what do you do at the end of advocacy regardless of outcome
talk about costs!
- if you win say i would like you to address opponent to pay costs (as the defendant has been successful, I urge you that the appropriate order to make is that the claimant pays the defendant costs of X)
- as i have lost i understand my client shall be paying the claimant’s (?) cost
application for interim injunction main points
1) dealing with serious question of law
2) damages will not be adequate
3) balance of convenience lies in favour of granting injuction
a) the merits of the case (how quickly did you apply - main thing with injunction is promptness + what was the def’s timeline and responsiveness)
b) the status quo
4) mention claimant’s ability to uphold the cross-undertaking
Grounds to change/add party within limitation period
1) desirable to resolve dispute
2) desirable because an existing part’s interest has passed to them
3) there is a connected issue that needs resolving
Grounds to add/change party after limitation period
Limitation period must have been current when the proceedings started!
1) named by mistake/died/bankrupt
2) liability has passed to them
3) cannot carry on without them
How does a legal representative sign claim form
Their own name
How does a legal representative sign statements of case
In the name of the firm
Grounds to claim interest
1) its set out in contract itself
2) for SPECIFIED claims b2b Late Payment of Commecial Debts (Interest) Act 1998: 8% above base rate + small statutory compensation for inconvenience
3) court’s discretion:
High Court: s35A of the Senior Courts Act 1981
County court: s69 of the County Courts Act 1984
Part 20
Counterclaim
Remedies (indemnities, contributions, additional claims)
Part 18
Request for further info
N244
Application to court - summary/default judgement (+vary/set aside)
+ summon witness to attend
What should there be in response for Part 18
Statement of truth
Service of N244 forms
3 clear days before hearing
(Remember rule of deemed delivery though- need to factor that in)
What to do if want to amend statement of case?
If its been served, need consent of party
If no response, then ask court
How to amend statement of case if limitation period expired
Need to fit one of the grounds
1) add/substitute new claim arising on same grounds
2) correct a mistake about a party
3) alter a capacity in which youre claiming
What do you do if opponent does not reply to your Part 18 request
Apply to court - will grant an order if reasonably necessary and proportionate
How does “burden” change if youre doing a injunction without notice?
You have duty of full and frank disclosure so must raise anything your opponent would have raised
Order was made of interim injunction without notice - how long do i have to respond?
7 days from order
What type of judge does freezing injunctions?
Circuit judge in CC or High Court judge in HC
Quirky thing about injunctions without notice
(Essentially freezing and search order)
Need affidavit
Apply to High Court
You have duty of full and frank disclosure
Difference in burden between applicant applying for summary judgement and defendant?
Applicant needs to prove BOTH no real prospect of success + no other compelling reason to go to trial
Def need only prove ONE (has a real prospect OR some other compelling reason) (obvi great if can prove both though)
When can u apply for summary judgement
Anytime! But would need court permission if def has not yet filled acknowledgment or defence
(Def then won’t need to file a defence)
Timings for serving/responding to summary judgement
Def needs to be warned 14 days before hearing
Can file and serve any written evidence up to 7 days before
Applicant can serve further evidence up to 3 days before
Key points interim injunction
- remain in force until hearing
- need to give cross undertaking
- asses legal facts, why damages arent adequate, and merits of claim and balance of convenience
When can claimant seek interim payment?
Only once period for acknowledgement of service has expired
Grounds for seeking interim payment injunction
1) def admitted liability/found liable/if trial proceeded claimant would obtain judgement for substantial amount of money
2) court has discretion of sum awarded but must not be higher than reasonable proportion likely to be awarded in final judgement (counting contributory neg and counterclaim)
Case management docs if case is in multi-track
1) case summary
2) disclosure report
3) costs budget
4) costs budget discussion report
Are claims automatically struck out if you fail to file directions questionnaire?
No
Unless its for county court money claims and no compliance within 7 days of notice
What sum is relevant for allocating track?
You dont include interest, costs, contributory negligence
Take whichever is largest - claim or counterclaim
What makes fast track inappropriate
Over 25k
Likely to last more than 1 day
Limits on £ small track
Not over 10k
For PI (pain suffering loss of amenity) and road traffic, not over 5k
High court or county court?
MUST be in county court if under 100k (or 50k for PI)
May be in High Court if value matches and other things taken into consideration as well
Who does case summary
claimant (usually in multi-track)
–> review submissions of fact
–> what is still in disagreement
–> identify key documents
–> key issues of law
(not obligatory but useful)
What dates can parties NOT vary
1) trial
2) returning pre-trial checklists
3) pre-trial review date
4) CMC dates
Costs of CMC
Usually in the case of
what’s in the costs budget
current and estimated future costs + statement of truth
when do you file costs budget
case under 50k: with directions questionnaire
case over 50k: 21 days before first CMC
what happens if you fail to file costs budget?
treated as if your only budget is court fees
whats the budget discussions report
gives figure for different phases and says if figure is agreed or not
- complete 7 days before CMC
when must costs budget discussion report be comepleted
7 days before CMC
amending costs budget?
other party must agree
if no response, can ask court for permission but rare - needs to have been signifciant developments (and will need to give a budget variation sheet)
when/why are costs management order imposes?
when judge is not satisfied litigation can be conducted justly or at proportionate costs
(not compulsory)
–> court will only depart from their last approved budget if there is good reason
can a party claim more following a costs management order?
its up to judge’s discretion, but if they’re claiming for 20% more than budgeted, must give a statement explaining difference
What do you do if you don’t agree with sanctions. you’ve received?
sanctions: relief
sanction for payment of costs: appeal
–> need to address Denton Factors
disclosure timing in small claims
14 days before hearing
(docs + expert report)
disclosure timing in fast-track
normally standard (14 d) but can make custom order
how to make custom order to vary standard disclosure in fast track
1) parties notify court of custom requirements via disclosure report filed and served at least 14d before first CMC
2)at least 7d before first CMC, parties must agree proposal for disclosure, and if they agree, file it at court
thing to remember about disclosure
its only about matters in dispute (dont disclose an email talking about contract if no one is denying there was a contract)
whats the scope of search in disclosre
reasonable and proportionate
N265
form for disclosure
- state extent for search
- MUST be signed by CLIENT (not legal rep)
- must give reasons for not allowing inspection of certain docs
can you use new docs if you want (disclosure)?
duty to disclose is continuous
but you would need other party’s consent (and if no court)
do you disclosure prejudice correspondence or genuine attempts to settle
yes but in part 2 (judge not aware of content)
how to make a request for further info?
Part 18
writing
must be granted within 7 days
what are the things claimant has no burden of proving?
- contributory neg
- mitigation of loss
- where def has perviously been convicted of relevant criminal offence, claimant does not have to reprove issues (def must disprove conviction on balance of prob)
what do you do if you want to use a witness
serve a witness statement on the other side
difference with adducing witness evidence in criminal and civil court
in civil you MUST serve a witness STATEMENT on the other side, with all the relevant info
in criminal you DO NOT serve STATEMENT, but must serve witness notice (name, address, date of birth) + defence statement
–> you would only serve the witness statement if the witness is not attending court (s9)
what happens if you fail to serve witness statement
cannot call witness without court permission!!
must make notice application before deadline to serve witness statement has expired
what can you do if you can’t serve a witness statement?
apply to serve WITNESS SUMMARY
- don’t need to give notice
- include the evidence the witness can provide if this is known, or if not, the matters on which they will be questioned on at trial
what do you set out in case summary
(prepared by claimant)
matters still in dispute
- set out chronology
- factual issues agreed/not
- evidence needed to decide
–> SIGNED and DATED
will assist judge in deciding how case should proceed to trial (in CMC)
costs budget formality
need to have date and statement of truth (can be signed by legal rep)