Dispute Resolution Flashcards
When would a summary judgement be served?
Where a defendant submits a weak defence or a claimant submits a weak particulars of claim (usually a litigant in person).
What is the test for summary judgement? (Applicant)
An applicant has to prove:
(i) R no real prospect of defending/succeeding the claim; and
(ii) No compelling reason why the case should be brought to trial
Respondent has to prove one of the grounds.
What does ‘no real prospect of succeeding on the claim’ mean?
It means that any potential claim or defence is fanciful, imaginary or false.
You do not have to prove that the claim will succeed on the balance of probabilities, just that it is an arguable position.
What would be a ‘compelling reason for the case to be disposed of at trial’?
D needs more time to investigate;
Expert evidence is required;
Other witnesses need to be heard from;
Case is highly technical and can only be understood at trial
When does the court utilise strike out?
The court can strike out the whole or part of a statement of case when:
(i) The SOC discloses no reasonable grounds for bringing or defending a claim;
(ii) The SOC is an abuse of the process of the court; or
(iii) When there has been a failure to comply with court orders/directions.
When is Default Judgement entered?
When there is no response to a claim in time - this is 14 days from POC service.
What is the mandatory ground for setting aside a default judgment?
When it was wrongly entered, usually because:
- the time period didn’t elapse;
- an acknowledgement of service or defence had been filed on time; or
- because the claim was already settled
What are the discretionary grounds for setting aside Default Judgment?
(i) There is a real prospect of defending the claim; OR
(ii) There is some other good reason to allow the defendant to defend their case (e.g. claim raises issues which should be given a full trial; D was ill; D was out the country)
AND
(iii) The Defendant acted promptly in making the application to set aside the default judgment
When are interim injunctions granted?
When it is just and convenient to grant it.
What are the 3 steps to consider when granting an interim injunction?
(i) There is a serious question to be tried (i.e. whether there is actually a question of law - was there a breach of duty? was there an actionable nuisance?);
(ii) whether damages are an adequate remedy for either side (i.e. damages for A if it wasn’t granted, damages for R if it was wrongly granted); and
(iii) the balance of convenience - which choice results in less injustice?
E.g. if there is a serious issue, i.e. copyright infringement, the court is likely to grant an interim injunction. However, if the injunction causes the other party to become bankrupt, the court will assess that damages are an adequate remedy.
What are the grounds for interim payments? (Claimant only)
(i) D admitted liability;
(ii) C obtained judgment against D for a sum;
(iii) Court knows C would obtain money judgment in favour at trial.
What must the court consider when making an order for interim payments?
They must not make a payment of more than a reasonable proportion of the final judgment;
Must consider any potential contributory negligence, set-off or counterclaim.
What are the grounds considered for Security for Costs? (Defendant Only)
(i) The Court is satisfied it is just to make an order; and
(ii) One of the following applies:
(a) C is a resident outside a Hague Convention State; or
(b) C is an impecunious company;
(c) C has made enforcement difficult, e.g. relocating, providing an incorrect address, failing to disclose assets
What is considered in ‘justness’ in Security for Costs applications?
(a) Strength of claim and defence;
(b) C’s ability to provide security - Court is reluctant to provide security if it stifles the claim;
(c) Cause of C’s impecuniosity - if because of D, unlikely to grant application;
(d) If abroad C has property in the UK;
(e) Whether the application was brought promptly
