Dispute Res - Advocacy

Question 1

What are the grounds for Summary Judgment?

Answer 1

Claimant or Defendant can apply on the whole of a claim or on a particular issue if

• Claimant has no real prospect of succeeding on the claim or issue; or
• Defendant has no real prospect of successfully defending the claim or issue; and
• there is no other compelling reason why the case or issue should be disposed of at a trial.

Question 2

When can Claimant apply for Summary Judgment?

Answer 2

When the defendant has filed –
(a) an acknowledgement of service; or
(b) a defence,
unless –
(i) the court gives permission; or
(ii) a practice direction provides otherwise.

Question 3

Evidence for the purposes of a summary judgment hearing

Answer 3

24.5
(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must –
(a) file the written evidence; and
(b) serve copies on every other party to the application,
at least 7 days before the summary judgment hearing.
(2) If the applicant wishes to rely on written evidence in reply, he must –
(a) file the written evidence; and
(b) serve a copy on the respondent,
at least 3 days before the summary judgment hearing.
–

Question 4

When may the court strike out a statement of case?

Answer 4

• statement of case discloses no reasonable grounds for bringing or defending the claim
• statement of case is an abuse of the court’s process or
• is otherwise likely to obstruct the just disposal of proceedings;
• or that there has been a failure to comply with a rule, practice direction or court order.

In defamation cases, strike out is commonly sought along with or in the alternative to summary judgment. An application to strike out may be made at any time.

Question 5

What is an Unless Order & which party can make an application?

Answer 5

An ‘unless order’ is an order by which a conditional sanction is attached to an order requiring performance of a specified act by a particular date or within a particular period (

The most commonly used sanction is that of strike out of the party’s statement of case.

• Claimant or Defendant

Question 6

Wording of an Unless Order
IGNORE

Answer 6

Unless the [claimant] [defendant] serves his list of documents by 4.00pm on Friday, 3 March 2023 his [claim] [defence] will be struck out and judgment entered for the [defendant] [claimant].’

Question 7

What is the test applied for Interim prohibitory injunction?

Answer 7

Discretionary power to grant an injunction if the applicant has provided a cross undertaking in damages and can show that:

• there is a serious question to be tried,
- damages would not be an adequate remedy for the loss, and
- the balance of convenience lies in favour of the injunction.

The Claimant can make the application.

Question 8

What are the mandatory grounds for setting aside default judgment?

Answer 8

• judgment was ‘wrongly entered’.
• entered too soon before the time for filing an acknowledgment of device of defence expired or
• the claim has already been paid in full.

Question 9

What is the discretionary ground for setting aside default judgments?

Answer 9

The Defendant:
1, has a real prospect of successfully defending the claim or
2, there is some other good reason why the defendant should be allowed to defend the claim. Eg, D was ill or away on holiday and couldn’t respond due to time constraints.

Question 10

What are the grounds that must be satisfied before the court will make an interim payment?

Answer 10

A, the defendant has admitted liability; or

B, the claimant has obtained a judgment against the defendant for damages to be assessed or for a sum of money; or

C, the court is satisfied that, if the case went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs)

Usually, an order for an interim payment will only be made if there is likely to be a delay in the assessment of damages, perhaps because the situation is ongoing or particularly complex.

As to ground (c), the burden on the applicant is high. They must prove, on the balance of probabilities, that they will succeed and it is not enough that the court considers it likely they will do so.

Question 11

What will the court consider regarding an application for relief from sanctions?

Answer 11

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

To seek a reprieve from a penalty imposed, the party must apply promptly and support the application with evidence addressing points the court will consider:

1. Seriousness or significance of relevant failure.
2. Why the failure occurred.
3. Evaluate all circumstances of the case to enable the court to deal justly with the application.

Question 12

What are the two limbs of the test for summary judgment?

Answer 12

1. Reasonable prospects
2. No other compelling reason

Both must be addressed

Question 13

At what time and how should permisión to appeal be requested from the lower court?

Answer 13

Orally- at the end of the hearing.

Question 14

On what grounds may permission be given to make a first appeal?

Answer 14

• The appeal would have a real prospect of success, or
• there is some other compelling reason why it should be heard.

Question 15

What are the reasons claim should start in the High Court?

Answer 15

• Value of claim/amountin dispute
• Complexity of facts, issues, remedies, or procedures
* importance of outcome to public