Dispute Resoltion Flashcards
What is the test for summary judgment and what power does the Court have to make an order?
Discretionary power
1) The Claimant has no real prospect of successfully succeeding in their claim; or
The Defendant has no real prospect of successfully defending the claim
2) There is no other reason why the case or issue should be disposed of at trial.
What is the test for setting aside default judgment and what power does the court have?
Mandatory power if the judgment was wrongly entered
Discretionary power if:
1) The Defendant can show they have a real prospect of defending the claim; or
2) it appears to the court that there is some other good reason why the judgment should be set aside, or the defendant should be allowed to defend the claim.
(the court must also consider whether the application to set aside was made promptly)
What is the test for Security for costs and what power does the Court have?
Discretionary power if the applicant can show one or more of the grounds below:
1) that the claimant is resident outside the jurisdiction (but not in a Brussels contracting state);
2) is a company or other body and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;
3) has changed address since the claim was started with a view to evading the consequences of litigation, or
4) failed to provide an address or gave an incorrect address on the claim form;
5) is acting as a nominal claimant [excluding a representative claimant in a test case] and there is reason to believe s/he will not be able to pay costs if ordered;
6) has taken steps in relation to his assets that would make it difficult to enforce an order for costs against her/him.
What is the test for Interim prohibitory Injunction and what power does the Court have?
Discretionary power to grant an injunction if the applicant can show that:
1) there is a serious question to be tried;
2) damages would not be an adequate remedy for the loss, and
3) the balance of convenience lies in favour of the injunction;
if appropriate, can offer a cross-undertaking in damages.
Courts power to make or vary Directions?
Under Case management powers:
1) Justify directions being sought with reference to the relevant CPR (Eg. CPR31 - disclosure / CPR35 -expert evidence):
2) Justify the directions being sought and how they will further the overriding objective to deal with cases justly and proportionately.
The test for an Unless Order and the courts powers?
Discretionary power if the applicant can show:
1) The other party is in breach of a Court order; and
2) they have complied with the order;
3) The order would be in the interest of the overriding objective to enforce court orders and deal with cases justly and proportionately.
Test for Strike Out application and court’s powers?
Discretionary power if the applicant can show:
1) that the statement of case discloses no reasonable grounds for bringing or defending the claim (for example, because the POC disclose no cause of action recognised in the law of England and Wales or the defence is a bare denial);
2) the claim or defence is an abuse of process;
3) there has been a failure to comply with a court order, procedural rule or payment of court fees.
Test for Relief from Sanctions and what power the Court has?
(E.G claim/defence struck out for non-compliance)
court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need:
a) for litigation to be conducted efficiently and a proportionate cost, and
b) to enforce compliance with rules, practice directions and orders.
3-stage approach. The court should:
- First consider the seriousness of the non-compliance.
(If the breach is not serious then discretion should be exercised and the court does not proceed with stage 2 & 3)
If the breach is serious move to stage 2
- Why the non-compliance occurred.
(Why the breach occurred and whether there was a good reason - Trivial errors or mistakes are unlikely to be a good reason for a serious breach. The court will move on to stage 3) - CT should consider all circumstances of the case.
a) whether the application was made promptly;
b) previous breaches; and
c) whether the sanction is proportionate
Test for Adjournment / stay of proceedings and what power the Court has?
Discretionary case management powers to manage cases so they further the overriding objective (Fairly, justly and at proportionate costs)
1) explain why the adjourment / stay is necessary;
2) Show why it is in the interest of the overriding objective;
3) the application was promptly made after the need arose.
Test for track allocation and power the Court has?
Discretionary under Court’s case management powers.
1) Set out the facts of the case.
Factors considered in track allocation:
a) value
b) complexity
c) evidential issues
2) Conclude with a track recommendation.
Test for Interim Payment and power Court has?
Discretionary
The claimant must show:
- The defendant has filed the AOS.
- Establish AT LEAST ONE condition for an interim payment has been met:
(a) defendant has admitted liability;
(b) claimant has obtained judgment;
(c) if claim went to trial, claimant would obtain judgment for a substantial amount of money (other than costs);
Conditions for two or more defendants:
(i) court satisfied that, if the claim went to trial, claimant would obtain judgment for a substantial amount against at least one of the defendants (but the court cannot determine which); and
(ii) all the defendants are either -
(a) insured;
(b) a defendant whose liability will be met by an insurer under MIB; or
(c) the defendant is a public body.
- Explain what the interim payment will be used for;
- Request a specific sum for the interim payment or instalment payment;
- Demonstrate that the sum requested is a reasonable proportion of the likely damages;
- Address the court, if appropriate, on:
(a)contributory negligence; and
(b) any relevant set-off or counterclaim.
Claims track values
Small - upto £10,000 (£5,000 for RTA or £1,500 for other PI)
Fast - £10,001 - £25,000 / £5,000 (PI)
one day max trial
1 expert per party in 2 fields
Intermediate - 25,000 - £100,000
max 3 day trial
2 experts each
Multitrack - £25,000 - £100,000
Not suitable for FT or IT
