Dispute Flashcards
What is the likely test for Interim Payment that will come on?
Court satisfied that if claim went to trial the Claimant would obtain a substantial amount of money, other than costs, against the Defendant from whom they are seeking an interim payment
How much can the Court be ordered to pay?
Reasonable proportion of the final judgement, taking into account any contributory negligence, set-off or counterclaim
Interim Payment Structure (4)
Judge, there are 4 issues I wish to address you on
1) The merits of the claim (that it will succeed)
2) The amount of the substantial damages that will be awarded at trial (go over each loss, how bad it is and how much you will receive)
3) Why you should exercise your discretion to make this order
a) promptness
b) size of payment makes it worthwhile
c) making the order will not delay or prejudice the fair conduct of the trial
4) Finally, the amount of the interim payment as a reasonable proportion of the likely amount of the final judgement
a) explain why it is a reasonable proportion (25% or one quarter of it)
b) explain why contributory negligence or damages should not be taken into account (Judge, it is my submission that the final award will not be reduced by the contributory negligence as claimed in PARA)
CPR overriding objective at the end
Interim Injunction Test
Must be (American Cyanamid Principles)
1) There is a serious question to be tried; and
2) Damages would not be an adequate remedy; and
3) That a balance of convenience favors an injunction: just and convenient to grant an injunction
CPR 1.1: just and proportionate cost
Offer an undertaking in damages
Relief from Sanctions: Three Stage Test
1) Seriousness of Breach
2) Reason for Breach
3) All circumstances to deal with the case justly
Security for Costs Test
Court satisfied that having regard to all circumstances of the case that it is just to make such an order; and
1) C is resident outside jurisdiction and is not a State bound by the Hague Convention 2005
2) C is a company and there is reason to believe that they will be unable to pay D’s costs if ordered to do so (if D is alleged to be the fault argue why not)
3) C has changed address since claim was commended with a view of evading the consequences of litigation
4) C has failed to give their address in the claim form to have given an incorrect address
5) C has taken steps in relation to their assets that would make it difficult to enforce an order against them
Will also consider: promptness and CPR 1.1
Security for Costs Structure
1) Introduce legal ground and that it is just to make the order
2) Factual Basis with Evidence from Hearing Bundle
a) location of assets and practical difficulties in enforcing an order for costs
b) amount of security sought and details of costs already incurred by the Defendant and estimate of Defendant’s future costs (also mention no alternative but to defend claim in order to protect its reputation)
c) Parties correspondence if a voluntary payment was sought and refused
3) That it would be just to make the order for security
a) Probability of claim failing
b) If impecuniosity that it was not brought about by D’s conduct
c) Application was made promptly
Test Strike our Statement of Case
Court may strike out if it appears to the court that:
Statement of Case discloses no reasonable grounds for bringing or defending a claim; OR
Statement of Case is an abuse of the court process; OR
There has been a failure to comply with a rule, practice direction or court order
And that it is just to make such an order
CPR 1.1
Summary Judgement Test
No real prospect of defending or succeeding on a claim; AND
No other compelling reason why the issue should be disposed of at trial (court has all information it needs to make a decision on the underlying claim: can be determined summarily with all evidence available at this hearing)
Default Judgement Test
Defendant has REAL PROSPECT of successfully defending the claim; OR
It appears to court that there is some other good reason why the judgement should be set aside or the defendant be allowed to defend the claim
Also the 3 Denton v White Factors
And CPR 1.1
Denton v White Factors
1) The seriousness or significance of failure to respond to the proceedings
2) Why they failed to respond to the proceedings
(while i do not say that the Defendant had a good reason, Judge there is good explanation)
3) All the circumstances of the case
a) Prejudice/Hardship
b) Promptness
Interim Payment Claim Beginning (6)
1) Judge, I act for the Claimant, (NAME). This is their application for an interim payment in the sum of (SUM)
2) Hearing Bundle
3) Judge, the Claimant’s claim is for damages for (WHAT) that they sustained when (WHAT).
4) IF AGREED TO ANYTHING (Judge, can I indicate from the outset that the Defendant has agreed to, subject to the issue of liability….)
5) Background facts
6) Judge, in making this application the Claimant has the burden of satisfying you on a balance of probabilities that the claim will succeed at trial and the Claimant will be awarded substantial amount of money against the Defendant
7) There are 4 issues that I wish to address you on
Merits of Claim Structure
1) The Claimant’s Case (why it is damning: focus on the witness statement)
2) Contrast the account with the Defendant’s witness statement
3) Third evidence which is consistent with Claimant’s claim (police report)
How to end all advocacy
Unless I can assist you further these conclude my submissions
