DISPUTE ADVOCACY Flashcards
What conditions need to be satisfied for an interim payment order?
**not evidence
- D admitted liability to pay damages
- C got judgement for damages against D to be assessed
- If claim went to trial, claimant would obtain judgement for a substantial amount of money against the defendant
What must the evidence demonstrate for an interim application costs order?
COSTS CERTAINTY
- Sum sought and why
- Likely final judgement sum
- PI — special damages, past and future loss
LEGAL TECHNICALITY
- Explain why the conditions are satisfied
- Fatal accidents — on whose behalf the claim is made and nature of the claim
Discretionary
- All other relevant
What is the general amount of money you an apply for in an interim application?
- Must be an amount proportionate to the final judgement
- Take into account contributory neg., set off and counterclaim
What are the grounds for security for costs?
- With regard to all circumstances of the case, it is just
- One + of the prescribed conditions/rules are satisfied
What are the conditions for security for costs?
ADDRESS
- Claimant is resident out of jurisdiction
- C changed address since claim started to try and make it more difficult
- C didn’t give an address in the claim form
NO MONEY
C is company, there is reason to believe will not be able to pay debts
C is a nominal claimant and there is reason to believe will be unable to pay D’s costs if ordered
ESCAPE ARTIST
C took steps with assets to make enforcement more difficult
What does it mean for a claimant to be out of jurisdiction?
- Individual: Habitual/normal residence
- Company: where their central management/control is exercised
- *Not England or Wales
- OR Hague convention
- UK, EU, Mexico, Singapore, Montenegro
- OR Hague convention
What do you have to show to prove a company won’t be able to pay debts?
- Amount of likely costs
- TEST: ‘WILL be unable’ not MAY… ‘REASON to believe WILL not be able”
What factors will the court consider regarding security for costs orders?
MAIN
- Ability of respondent to comply with security for costs order (b/c otherwise case is thrown)
LIKELIHOOD OF WINNING
- If D already admitted liability —> less chance of success B/C trial should continute
- Claim doesn’t appear genuine —> more chance of success
D’S A DOUCHE
- Delay —> less chance of success
- If D is responsible for C’s financial difficulties —> less success
- If D is using application aggressively —> less success
What are the 3 guidelines for an interim injunction order?
Step 1: Is there are serious question to be tried?
Step 2: Would damages be an adequate remedy?
Step 3: The balance of convenience
How will the court determine whether there is a serious question to be tried for an interim injunction order?
Must be a pre-existing cause of action, is not an action on its own is a remedy
How will court consider whether damages are an adequate remedy for an interim injunction order?
Would money be adequate compensation if the harm caused by no injunction happened?
Is the other party likely able to pay those damages
How will the court consider the balance of convenience for an interim injunction order?
- Very broad range — consider: what carries the lesser risk of injustice
- Equitable principals
- Must have practical purpose
- Clean hands
- Excessive delay
What are the grounds for summary judgement?
- Claimant has no real prospect of success OR
- D has no real prospect of successfully defending the claim AND
- There is no other compelling reason why the case of issue should be disposed of at trial
What does no real prospect of success mean for summary judgement?
- Fanciful, imaginary or false
- If there is ANY chance of success, will go through
What does a compelling reason mean for summary judgement? (examples)
**to continue to go to trial
Case Could Strengthan in Future
- D needs more time to investigate
- Expert evidence is needed
- Scrutiny of key documents
- Multi-party litigation
Rights/Justice
- D has right to trial by jury
What must claimant show to be granted a default judgement?
- Date judgement was entered, time for filing acknowledgement/defence had expired
- Claim not admitted or satisfied by D
- No application for summary or strike out has been made by D
On what grounds can the court set aside a default judgement?
Court MUST set aside: If judgement was entered wrongly
- e.g., the conditions to set aside were not actually met
Court MAY set aside: If judgement was correctly entered
What factors will the court consider when deciding whether or not to set aside a correctly entered default judgement?
- If D has a real prospect of defending claim
- If there is some other good reason, mostly from C’s failures/bad conduct:
- Claimant lulled the D into believing a claim was not forthcoming
- C failed to serve a response pack
- C raises issues which are in public interest
- Overriding objective
- Delays
What else will the court consider when deciding whether or not to set aside default judgement?
Denton
What are the tests in Denton?
- Denton and Others
- Is the breach serious or significant? If not — give relief
- Imperilled hearing/disrupted litigation
- NOT conduct of parties
- If yes —> why did the default occur?
- Evaluate all circumstances of the case
- Override
- Enforce compliance
- Is the breach serious or significant? If not — give relief
When is Denton used?
Relief from sanction
*also to set aside default judgement
What will the court evaluate when considering relief from sanction?
General overriding objective
Denton
What conditions have to be met so that the court MAY make a pre-action disclosure order?
- Respondent AND applicant likely to be a party to subsequent proceedings
- These docs would likely be included in standard disclosure of future proceedings (scope cannot be wider than ordinary standard disclosure)
- Pre-Action Disclosure is desirable to
- Dispose fairly of anticipated proceedings
- Assist the dispute to be resolved without proceedings
- Save money
What is included in standard disclosure?
- Documents which you rely and
- Documents which
- Adversely effect your case or somebody else’s
- Support another parties case
- Documents you’d be required to disclose by a practice direction
