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SQE2 > Dispute Resolution > Flashcards

Dispute Resolution Flashcards

1
Q

What is the legal test required for a judge to grant a summary judgment?

A

a) There is no real prospect of the respondent successfully defending/bringing the claim; and
b) There is no other compelling reason why the matter should move to trial.

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2
Q

Is the judge’s power in relation to granting summary judgment discretionary or mandatory?

A

Discretionary

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3
Q

What is the legal test required for a judge to set aside a default judgment?

A

a) The defendant has a real prospect of successfully defending the claim; or
b) There is some other good reason why the judgment should be set aside and the defendant be allowed to defend the claim; AND
c) The defendant must have acted promptly.

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4
Q

In what circumstances is it mandatory for a judge to set aside a default judgment?

A

a) The judgment was entered too early;
b) The application was made after the defendant had made an application to strike out;
c) The claim has already been settled; or
d) The defendant has already submitted a request for time to pay which has not been considered.

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5
Q

What is the legal test required for a judge to grant a freezing injunction?

A

The court has a power to grant a freezing injunction if it is just and equitable.

The just and convenient test is used:
a) The claimant has a good and arguable case;
b) The defendant has assets within the jurisdiction; and
c) There is a real risk the defendant may dispose or dissipate those assets before judgment can be enforced.

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6
Q

Who can grant freezing injunctions?

A

Only High Court judges.

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7
Q

What is usually required alongside a freezing injunction?

A

An undertaking from the solicitor to pay consequential damages.

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8
Q

What can the defendant do if they wish to apply to discharge a freezing injunction?

A

Offer to pay security for the claim (e.g. into court).

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9
Q

What are the grounds for applying for a search order?

A

a) There must be a strong prima facie case on the merits of the underlying claim;
b) The defendant’s activities must cause very serious harm to the claimant’s interests; and
c) There must be clear evidence that the defendant holds the property and there is a real possibility the property might be destroyed before an application can be made on notice.

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10
Q

What will the court appoint in the event they grant a search order?

A

A supervising solicitor who will explain the meaning of the order to the defendant, explain the possibility of applying to discharge it, and to prepare a report on the execution of the order.

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11
Q

What are the grounds for an application for a security for costs?

A

The defendant must show:
a) The claimant is resident outside the jurisdiction;
b) The claimant is a company and there is reason to believe it will not be able to pay its costs if ordered to do so;
c) The claimant has changed address since the proceedings to avoid costs consequences; or
d) The claimant supplied the wrong address on the claim form.

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12
Q

What are the grounds for an application for an interim payment?

A

a) The defendant has admitted liability;
b) The claimant has obtained judgment and damages have not yet been assessed;
c) The court is satisfied that if the action were to proceed to trial the claimant would obtain judgment for a substantial amount; or
d) If 2 defendants, as (c) and both carry insurance.

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13
Q

What are the grounds for an application to strike out a statement of case?

A

a) There is no legal basis for the claim detailed in the statement of case;
b) It is an abuse of the court’s process; or
c) The claimant has failed to follow a rule or practice direction.

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14
Q

What are the consequences if a party fails to follow the relevant Pre-Action Protocol or Practice Direction?

A

There can be costs consequences, time consequences or restricted/higher interest order on damages.

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15
Q

When can pre-action disclosure be applied for?

A

When the documents would be disclosed under standard disclosure and doing so now could assist in disposing of the claim without the need to issue proceedings.

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16
Q

After the claim has been issued, how long does the claimant have to serve the claim form on the defendant?

A

4 months (6 if serving outside the jurisdiction, although permission is required).

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17
Q

After serving the claim form, how long does the claimant have to serve the Particulars of Claim if not served with the claim form?

A

14 clear days.

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18
Q

What are “clear days”?

A

The day that the document is sent is not included and, if in reference to an event at the end of the period, the day of the event is not included.

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19
Q

When is service deemed effectuated?

A

The second business day after having posted it. If by hand, service is immediate.

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20
Q

To whom should the claim form/PoC be served?

A

If the claimant is an individual and has nominated solicitors, it must be served on them. If the claimant is a company, then the registered office would also suffice.

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21
Q

How should the defendant challenge service?

A

Indicate it on the acknowledgement of service form and issue an application to set aside service within 14 days.

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22
Q

How long does a defendant have to respond to a claim?

A

The defendant has 14 days from when they receive the PoC to respond. They can acknowledge service via the acknowledgement of service form which grants them an additional 14 days.

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23
Q

What is the maximum amount of time the parties may agree to for a defence to be served without the court?

A

56 days.

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24
Q

When can the claimant make an application for summary judgment and/or for an interim payment?

A

After the defendant has acknowledged service.

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25
Q

How should the defendant dispute jurisdiction?

A

By ticking the relevant box on the acknowledgement of service form and filing an application with evidence in 14 days.

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26
Q

What is the overriding objective?

A

a) To ensure the parties are on an equal footing;
b) To save expense;
c) To deal with cases proportionately and expeditiously;
d) To allot the appropriate share of court resources; and
e) To enforce compliance with rules, practice directions and orders.

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27
Q

How long do the parties have to return the Directions Questionnaire?

A

28 days.

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28
Q

What are standard directions in a small claims hearing?

A

a) Documents are exchanged 14 days before a hearing; and
b) No expert may be used without the court’s permission.

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29
Q

When does the trial take place in a fast track claim?

A

Within 30 weeks of allocation.

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30
Q

How does expert evidence work in a fast track case?

A

The use of single joint experts is encouraged. A party seeking to rely on it will need to prove it is justified and provide an estimate of costs.

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31
Q

What are the standard directions in a fast track case?

A

Disclosure: 4 weeks
Witness statement exchange: 10 weeks
Expert report exchange: 14 weeks
Pre-trial checklist: 20 weeks
Pre-trial checklist returned: 22 weeks
Date of trial: 30 weeks

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32
Q

How long does a party have to apply to vary any directions?

A

14 days.

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33
Q

How should an innocent party respond if a party defaults on directions/a court order?

A

They should apply for an unless order.

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34
Q

What will the court consider if a party is applying for relief from sanctions?

A

a) The seriousness of the breach; and
b) The reasons for the breach.

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35
Q

What must be disclosed under standard disclosure?

A

a) Any document a party seeks to rely on;
b) A document that affects the other party’s case adversely; or
c) Any document that strengthens the other party’s case.

36
Q

What kinds of document need to be disclosed to the other party?

A

Those that are in the party’s control.

37
Q

What does it mean to have a document in your ‘control’ in the context of disclosure?

A

To have physical possession of it or to be able to get physical possession of it, or to have had it in possession but no longer have it.

38
Q

What kind of search must be made by the parties under standard disclosure?

A

A reasonable and proportionate search.

39
Q

What three sections is a disclosure list split into for fast-track and multi-track cases?

A

a) Documents in the party’s control that they do not object to inspection;
b) Documents in the party’s control that they do object to inspection; and
c) Documents no longer in their control.

40
Q

Who is required to make a statement that they have fulfilled their disclosure obligations?

A

The client, NOT the solicitor.

41
Q

What should a party do in the first instance if they are unhappy with disclosure?

A

Make a written request for documents.

42
Q

What should a written request for document disclosure include?

A

Information about the documents, why it is reasonable and proportionate to request them, why they suspect the other party has the document and any safeguards that can be put in place to ensure confidential information is protected.

43
Q

What is disclosure limited to in small claims track cases?

A

That which is reasonable and proportionate.

44
Q

When must a disclosure list be filed before a CMC in a multi-track case?

A

At least 14 days before, or with the Directions Questionnaire.

45
Q

What is legal advice privilege?

A

Privilege that protects all communications between a client and their lawyer in which legal advice is given.

46
Q

What is litigation privilege?

A

Privilege that protects communications between a client and third parties (e.g. barristers/experts) that relate to real or prospective litigation.

47
Q

What is common interest privilege?

A

Privilege that protects multiple clients’ communications with each other in the context of a group claim.

48
Q

What is public interest immunity?

A

The retention of a document that risks harming the nation or the administration of justice.

49
Q

What is public interest immunity?

A

The retention of a document that risks harming the nation or the administration of justice.

50
Q

What is without prejudice privilege?

A

Privilege that protects communications marked as ‘without prejudice’ between the parties, commonly in respect of a proposed settlement.

51
Q

What is the general requirement for witness evidence?

A

That it be served on the other side and that the witness swears in writing to its truth.

52
Q

What should a party do if they fail to serve a witness statement on the other side but still want to adduce the evidence?

A

They should make an application to the court that explains a good reason for failing to serve the witness’s evidence in advance.

53
Q

When must a witness summons be issued by?

A

At least 7 days before trial.

54
Q

What should a party do if it cannot serve a full witness statement on the other side?

A

They should make an application to serve a witness summary, which is often granted if a witness is out of the country.

55
Q

What is hearsay?

A

A statement made out of court.

56
Q

What should a party do if they are intending to rely on hearsay?

A

Serve a notice on the other side, either by serving the witness statement or by serving a formal document giving notice.

57
Q

How can a party that receives a notice to rely on hearsay contest the notice?

A

a) Issue an application to force the witness to attend court; or
b) Serve a notice to attack the witness’s credibility.

58
Q

To what is an expert’s role restricted?

A

What is reasonable required to resolve the proceedings.

59
Q

What are the four general requirements for expert evidence?

A

a) It must depend on special knowledge that is not within the ordinary experience of the judge;
b) The expert must be able to demonstrate they are an expert in the field;
c) They must have a reasonable degree of certainty in their findings; and
d) They must be able to demonstrate the basis for their findings.

60
Q

When can a party use their own expert?

A

When it would be reasonable to do so.

61
Q

What is the indemnity principle?

A

That a party cannot recover in costs more than it would pay to their own lawyers if they were paying.

62
Q

What are the 2 requirements when costs are ordered on a standard basis?

A

a) The costs must be proportionate; and
b) Any doubt is decided in favour of the paying party.

63
Q

What are the 2 requirements when costs are ordered on an indemnity basis?

A

a) Proportionality is not considered; and
b) The only way to contest is to argue that it was unreasonable for the solicitor to charge the cost in the first place.

64
Q

What should parties do in the first instance when considering costs?

A

Seek to agree.

65
Q

What will take place if the parties cannot agree to costs?

A

An assessment hearing.

66
Q

What 4 things will be taken into account when considering costs orders at an assessment hearing?

A

a) The value of the claim;
b) The complexity and importance of the claim;
c) The skill and effort involved; and
d) The time spent.

67
Q

In a multi-track case, when are costs budgets due?

A

a) With the Directions Questionnaire; or
b) 21 days before the first CMC.

68
Q

What kind of hearing is held if the court is to consider costs before the full hearing?

A

A CCMC.

69
Q

What should a party do if it wants to exceed the limit on the Costs Management Order?

A

Make an application to the court for a new order.

70
Q

What is the potential consequence of failing to return a costs budget?

A

No costs order.

71
Q

What kind of costs assessment takes place for smaller claims?

A

A summary assessment.

72
Q

What kind of costs assessment takes place for more complex and higher value claims?

A

A detailed assessment.

73
Q

What kind of costs are awarded for small claims and fast track claims?

A

Fixed costs and fixed trial costs.

74
Q

What must a party serve on the other when there is a detailed costs assessment?

A

A bill of costs.

75
Q

What should a party who wishes to dispute a bill of costs do in the first instance?

A

Issue a points of dispute document within 21 days.

76
Q

What can a party apply for if they do not receive points of dispute after having sent a bill of costs?

A

Apply for a default costs judgment.

77
Q

What does it mean when a judge provisionally assesses a bill of costs?

A

They are checking it for reasonableness.

78
Q

What order is given when costs have been decided by a judge?

A

A final costs certificate.

79
Q

What does a party need to file if they exceed their costs budget by more than 20% in their bill of costs?

A

A statement with reasons.

80
Q

When is it mandatory for a judge to set aside a default judgment?

A

When it was wrongly entered.

81
Q

What is the test required to grant an interim prohibitory injunction?

A

a) There is a serious question to be tried;
b) Damages would not be an adequate remedy; and
c) The balance of convenience lies in favour of the injunction.

82
Q

What must the applicant do when applying for an interim prohibitory injunction?

A

Provide a corss undertaking in damages.

83
Q

What should you call a judge (e.g. Hill J)?

A

Judge

84
Q

What should you call a circuit judge (e.g. HHJ Hill)?

A

Your Honour.

85
Q

What should you call a district judge (e.g. DJ Hill)?

A

Sir / Madam.

86
Q

Under what ground can the High Court award interest?

A

Under section 35A of the Senior Courts Act 1981.

SQE2 (8 decks)

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