dispute resolution advoacy scenarios

Question 1

default judgement

Answer 1

test:

1. the particulars of claim have been VALIDLY served on the defendant
2. the defendant has not filed an acknowledgment of service or defence within the relevant time.

relevant time: 14 days from service of the particulars of claim, extended to 28 days with acknowledgement of service.

NB:
- easy to prove
- will only fail if the defendant has already made an application for summary judgement or to have claim form/PoC struck out.
- does not consider the merits of the case: procedural only.

Question 2

setting aside default judgement

Answer 2

2 tests: mandatory and discretionary grounds

Mandatory ground:
- the defendant must show that they did file the document before the relevant time period expired or that the defendant has settled and plaid the claim prior to judgement in default being entered.

discretionary ground:
- the defendant must show EITHER: (IN THE ALTERNATIVE)
1. they have a real prospect of successfully defending the claim
2. OR that there is some other compelling reason why they should be allowed to defend the claim.

The court will also consider:
- whether the defendant applied promptly upon receipt of the judgement in default.
- DENTON principles (relevant for any application from relief of sanctions)
1. identify the seriousness and significance of the breach of the relevant rule, practice direction or court order.
2. consider the reasons why the default occurred.
3. evaluate all the circumstances of the case.

Question 3

summary judgement PART 24

Answer 3

PART 24 CPR - allows a party on the receiving end of a weak claim or defence to request the court to order that either the whole, or part, of the relevant SOC is disposed of.

MUST MEET BOTH GROUNDS:
1. the respondent has no real prospect of successfully defending the claim or defence (high threshold-close to imaginary chance) AND
2. there must be no other compelling reason why the claim should proceed.

note;
- high threshold for first test
- compelling reasons include complex facts, defendant requires more time to investigate, expert evidence is required to make a proper determination of the claim.

Question 4

interim payment PART 25

Answer 4

Can be made on a voluntary basis between the parties, it is only where the defendant has refused, that the claimant should consider making an application to the court to order an interim payment.

test: one must be proved (in the alternative)

1. the defendant has admitted liability to pay damages or some other sum of money to the claimant
2. the claimant has obtained judgement against that defendant for damages to be assessed or a sum of money other than costs to be assessed.
3. the court is satisfied that:
   
   • if the claim went to trial, the claimant would obtain judgement for a substantial amount of money - other than costs against the defendant from whom they are seeking an order for interim payment

MUST CONSIDER:
1. the overriding objective
2. proportionate amount of money to the likely damages to be awarded.
3. ground 3 is very high threshold - there needs to be a significant amount of evidence that they will win and the damages to be awarded will be substantial.

Question 5

interim injunction

Answer 5

guidelines the court will consider

1. is there a serious issue to be tried: consider whether the claim is imaginary, frivolous, or vexatious
2. would damages be an adequate remedy - the court will consider whether damages alone would be a sufficient remedy for the claimant and if awarded whether the respondent would be able to pay those damages
3. where does the balance of convenience lie? the court must consider which party would suffer the biggest inconvenience if the injunction were granted, or if it was not granted.

Question 6

cost hearings

Answer 6

where a cost management order has been made (where the court has indicated that the budgeted costs are reasonable and proportionate) - the court will not depart from it unless it is satisfied that there is good reason to do so. departing from the costs budget would mean allowing costs in excess of those in the approved costs budget or the cost management order.

Question 7

security for costs

Answer 7

usually made by a defendant against a claimant. but it is also possible in respect of a counter claim from a claim and third party v defendant in respect of an additional claim.

CPR 25: the court must be satisfied (BOTH)
1. having regard to all the circumstances, it is just to make an order (consider the respondent’s (claimant’s) ability to comply with a security for costs order) AND
2. one or more of the prescribe conditions are satisfied.

prescribed conditions:
1. claimant resides outside jurisdiction
2. claimant is a company and there is reason to believe it will be unable to pay costs if ordered.
3. claimant has taken steps with their assets to avoid enforcement of costs order
4. changed address for evasive reasons
5. claimant has failed to give an address

application should include
1. defendant’s likely costs
2. which ground is being relied upon with evidence e.g. the claimant’s accounts.
3. factors to be considered
4. amount requested.

Question 8

strike out

Answer 8

May potentially be combined with summary judgement.

The court may strike out whole or part of a statement of case which discloses:
1. no reasonable grounds for bringing a claim OR
2. is an abuse of the proves of the court or otherwise likely to obstruct the just disposal of proceedings

further examples:
1. particulars of claim doesn’t set out the facts of the substance of the claim
2. the facts are incoherent/make no sense
3. facts would not amount to a defence in law
4. Bare denial.

Question 9

permission from court to withdraw a part 36 offer

Question 9

relief from sanctions

Answer 9

Denton:

1. Whether the breach of the rule/court order was serious or significant
   e.g. Relatively time elapsed between original due date D + today.
   - Did not imperil set hearing dates.
   - Has not disrupted future conduct of litigation.
   - Has not caused delay that will impact C’s ability to present case in evidence quality/availability will have decreased.
2. Why did the default occur?
3. Consider all circumstances of the case.

also consider the overriding objective

Question 10

consent orders

Answer 10

Although consent orders and Tomlin orders reflect the agreement of the parties, they still need the court’s approval.
Once the parties have agreed the content of the order, they will need to apply to the court in order to have the order made.

Question 12

specific disclosure / inspection after proceedings and the opponent

Answer 12

If the court has made an order for standard disclosure, documents should have already been disclosed.

If the other party has ‘failed to adequately comply with obligations imposed by order for disclosure’ can order specific disclosure.

consider the overriding objective - disclosure must be proportionate to the case.

Question 13

non party disclosure

Answer 13

will only be made:
1. for documents likely to support a case/adversely affect the case of another party.
2. necessary to dispose fairly of the claim / save costs
3. required to specify documents which are no longer under the control of the other party.

Question 14

pre action disclosure

Question 15

norwhcimh pharmacy orders befroeproceedings and non party

Question 16

permission from court to withdraw a PART 36 offer (settlement offer)

Answer 16

Permission to withdraw the offer must be made less than 7 days after notice of acceptance and must satisfy the court that:

1. there was a change of circumstances since the original offer was made AND
2. it would be in the interests of justice to grant permission to withdraw.