Dispute Resolution Advocacy - Legal Tests

Question 1

What is summary judgement?

Answer 1

It is an application made by a party that states judgment should be given to them because the other party has no real prospect of success or there is no other compelling reason to go to trial

Essentially it is an application that the other party has no real case or not a strong one at all.

Question 2

What are the grounds to establish for an application for summary judgment?

Answer 2

a) court considers that;

i) that claimant has no real prospect of succeeding on the claim; or
ii) that defendant has no real prospect of successfully defending the claim; and

b) there is no other compelling reason why the case should be disposed of at trial

Question 3

Is granting an application for summary judgment a mandatory or discretionary power?

Answer 3

Discretionary power

Question 4

What is a default judgment?

Answer 4

Judgment given in favour of claimant because defendant fails to respond to a claim within the specified timeframe, leading to a judgment without a trial or court hearing

Question 5

What are the grounds to establish for an application to set aside a default judgment?

Answer 5

There are two sets of grounds that could be established (Mandatory or Discretionary)

Mandatory grounds

• Judgment (for default judgment) was entered too early (ie before the time for filing acknowledgement or defence expires)
• The application for judgment was made after an application had been issued by the Defendant to strike out or dismiss the claim and that application has not yet been considered by the court
• The claim has already been paid or settled
• The defendant has already submitted a request for time to pay which has not yet been considered

Discretionary grounds

• Defendant has a real prospect of defending the claim
• There is some other good reason why defendant should be allowed to defend (ie they were sick or out of country and could not respond)

Question 6

What is a statement of case?

Answer 6

These are formal documents in which the parties concisely set out their respective cases

Typically the bundle includes:
* Claim form
* Particulars of claim
* Defence (if contested)

Additional documents sometimes required include:
* Counterclaim
* Defence to counterclaim
* Requests for further information

Question 7

What are the grounds to establish for striking out a statement of case?

Answer 7

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order

Examples for statement of case

• those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
• those which are incoherent and make no sense
• those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.
• And claims that are vexatious, scurrilous or obviously ill-founded.

Question 8

Is granting an application to strike out a statement of case a mandatory or discretionary power?

Answer 8

Discretionary power

Question 9

What is an interim payment?

Answer 9

Enables a claimant who has a strong case on liability to avoid the financial hardship and/ or inconvenience that might otherwise occur because of delay between start of claim and end of hearing

Question 10

What are the grounds to establish for an interim payment?

Answer 10

Grounds
One of these grounds must be established

1. the defendant against whom the order is sought has admitted liability;
   .
2. the claimant has obtained judgment against that defendant but the sum to be paid has not yet been assessed;
   .
3. the court is satisfied that, if the action proceeded to trial the claimant would obtain judgment and a substantial sum;
   .
4. If against 2 or more defendants, the court is satisfied that if the action went to trial they would obtain judgment and a substantial sum against at least one Defendant.

Information
Order for interim payment only given if there is likely to be a delay in assessment of damages (ie because situation is ongoing or particularly complex)

Claimant must have given defendant opportunity to pay before application is made

Application can’t be made until time for filing acknowledgment of service has expired

Must be a reasonable proportion of likely final amount of damages. No set figure but courts have awarded 75% of final damages in some cases

Question 11

Is granting an application interim payment a mandatory or discretionary power?

Answer 11

Discretionary power

Question 12

What are the grounds to establish an application to adjourn a hearing/trial? (Hint: They are considerations more than grounds)

Answer 12

Courts must consider the overriding objective. In particular, they have regard to the following considerations:

• the parties’ conduct and the reason for the delay
• the extent to which the consequences of the delay can be overcome before the trial
• the extent to which a fair trial may have been jeopardised by the delay
• specific matters affecting the trial, such as illness of a critical witness
• the consequences of an adjournment for the claimant, the defendant, and the court.

Information
Where trial date is already fixed, court will only make an order to postpone as a last resort
Applications must be made as soon as possible

Question 13

Is granting an application to adjourn a hearing/trial a mandatory or discretionary power?

Answer 13

Discretionary power

Question 14

What is an interim injunction?

Answer 14

Injunctions require or stop a party from doing something. These applications can often be made with notice on the other party.

Question 15

What are grounds for establishing an interim injunction?

Answer 15

The legal test is derived from American Cyanamid

1. There is a serious question to be tried (is there an actionable cause?)
2. Whether damages are an adequate remedy for either side (ie if one side has weak finances, unlikely to be able to pay damages or vice versa)
3. The balance of convenience lies in favour of granting or refusing injunction (court weighs the potential harm to the claimant if the injunction is not granted against the potential harm to the respondent if it is granted)
4. Ability to pay cross-undertaking (should it be realised the injunction should not have been granted)

Question 16

What are the grounds to establish in order to discharge an interim injunction?

Answer 16

A party subject to the injunction may seek to discharge it on the following grounds:

• The applicant failed to provide all relevant information
• The applicant failed to comply with the terms of the injunction
• The facts do not support the injunction
• The injunction is oppressive
• There has been a material change in circumstance since the injunction was granted
• The Claimant failed to prosecute the claim with due speed after obtaining the injunction.

Question 17

What is a freezing injunction?

Answer 17

An injunction that restrains a party from removing their assets from the jurisdiction

Question 18

What are the grounds to establish for a freezing injunction?

Answer 18

Grounds
1. There is a justifiable cause of action
2. The Claimant has a good, arguable case
3. The defendant has assets within the jurisdiction; and
4. There is a real risk that the defendant may dispose of or dissipate those assets before Judgment can be enforced.

Information
Must usually make an undertaking in damages

Injunction should last no longer than underlying claim

Must usually be supported by evidence in form of affidavit

Applications made in High Court

Question 19

Is granting a freezing injunction a mandatory or discretionary power?

Answer 19

Discretionary power and only available in the High Court

Question 20

What is a search order?

Answer 20

Compels the respondent to allow their premises to be searched by the applicant, where the applicant believes that the respondent has documents or property belonging to them

Question 21

What are the grounds to establish for a search order?

Answer 21

Grounds
1. There is a strong prima facie case on the merits of the case;
2. Harm will be suffered if the order is not made (The reason for claiming the enjoined party might hide or destroy the evidence); and
3. Clear evidence the property or documents are in the enjoined party’s possession.

Information
Applications made in high court

Must be supported by evidence in the form of an affidavit

Question 22

Is granting an application for a search order a mandatory or discretionary power?

Answer 22

Discretionary power and only available in High Court

Question 23

What is security of costs?

Answer 23

Claimants can decide to pursue litigation or not whereas a defendant does not have a choice. Security of costs can help protect defendants in these situations

If order is granted, claimant will be ordered to pay a sum of money to the court as a form of security

Question 24

What are the grounds to establish a security of costs order?

Answer 24

Grounds

a. Court is satisfied, all things considered, that it is just to make such an order

b. One of the following is satisfied

• one or more conditions listed below are satisfied, or
• an enactment permits the court to require security of costs

Conditions
a. The claimant is resident out of the jurisdiction

b. the claimant 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 (common) - company finances and cost of litigation essential for this

c. the claimant has changed his address since the claim was commenced with a view to evading the consequences of the litigation

d. the claimant failed to give his address in the claim form, or gave an incorrect address in that form

e. the claimant is acting as a nominal claimant, other than as a representative claimant under Part 19, and there is reason to believe that he will be unable to pay the defendant’s costs if ordered to do so

f. the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him (common) - failure to disclose assets may be sufficient

Information
Before applying, defendant should write to the claimant first and ask for security to be provided voluntarily

Question 25

What is relief from sanctions?

Answer 25

If a party has a good reason for non-compliance with a CPR rule or other court rule, they may apply for relief from any sanctions placed on them for the breach.

Question 26

What are the grounds to establish relief from sanctions? (Hint: they are considerations more than grounds)

Answer 26

The court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – * For litigation to be conducted efficiently and at proportionate costs; and * To enforce compliance with rules, practice directions and orders. An application for relief must be supported by evidence. **Information** Other factors include the seriousness of the breach (the less serious the breach, the more likely to be granted relief from sanctions) and the reason for breach (if it was due to serious illness or accident, more likely to be granted relief) - Essentially the Denton v White factors: - Seriousness of breach - Cause of breach + good reason? - All circumstances and promptness

Question 27

Is granting an application for relief from sanctions a mandatory or discretionary power?

Answer 27

Discretionary power

Question 28

What is an unless order?

Answer 28

An "unless order" is a court order that specifies a consequence (like striking out a claim) which will occur unless a party takes a specific action by a certain deadline

Question 29

What are the grounds to establish an 'unless order'? (Hint: Think considerations)

Answer 29

Court looks at certain factors such as * Whether the defaulting party had a good explanation for the failure to comply * the extent to which the party in default has complied with other rules, practice directions, court orders and relevant pre-action protocols

Question 30

Is granting an 'Unless order' a mandatory or discretionary power?

Answer 30

Discretionary power

Question 31

What is specific disclosure and inspection?

Answer 31

An order for specific disclosure is an order that a party must do one or more of the following things – 1. disclose documents or classes of documents specified in the order; 1. carry out a search to the extent stated in the order; 1. disclose any documents located as a result of that search. An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).

Question 32

Is ordering specific disclosure and/or inspection a mandatory power or discretionary power?

Answer 32

Discretionary Power

Question 33

What is standard disclosure?

Answer 33

Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – * adversely affect his own case; * adversely affect another party’s case; or * support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction

Question 34

What is pre-action disclosure?

Answer 34

Pre-action disclosure allows a potential claimant/ defendant to obtain a document from the other side before trial starts Specific documents must be asked for so it is important to describe the document(s) and give a time frame of when the document could be dated Must explain why the documents: * “Go to the heart of the dispute” * Show clearly once and for all whether the respondent is liable * If the respondent is liable it is highly likely that the parties will settle and no proceedings will continue

Question 35

What must be established to succeed in an order for pre-action disclosure?

Answer 35

1. The respondent is likely to be a party to subsequent proceedings (I.e. the defendant) 2. The applicant is likely to be a party to subsequent proceedings (I.e. the claimant) 3. If proceedings had started, the respondent’s duty by way of standard disclosure (CPR 31.6) would extend to the documents which the application seeks 4. Pre-action disclosure is desirable in order to: * Dispose fairly of the anticipated proceedings * Assist the dispute to be resolved without proceedings or * Save costs

Question 36

What is non-party disclosure?

Answer 36

This is an application for disclosure against a party that is not part of the proceedings Example would be where a party indicates in their list of documents that they no longer have a document in their possession, but that X does. If X refuses to supply it, can make a non-party disclosure

Question 37

What must be established for a non-party disclosure application?

Answer 37

a. The application must be supported by evidence. b. The court may make an order under this rule only where– * the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and * disclosure is necessary in order to dispose fairly of the claim or to save costs. c. An order under this rule must – * specify the documents or the classes of documents which the respondent must disclose; and * require the respondent, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection. d. Such an order may – * require the respondent to indicate what has happened to any documents which are no longer in his control; and * specify the time and place for disclosure and inspection.