Dispute Resolution - Advocacy Legal Tests Flashcards
Application for Summary Judgement (Grounds)
Purpose: To bring the matter to an early conclusion when the defendant files a week defence.
DISCRETIONARY POWER to give summary judgment if:
(a) the court considers that;
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.
(24.2 of CPR)
What are the common compelling reasons to refuse an application for Summary Judgement
- The need to allow more time for the matter to be investigated, perhaps due to difficulties in contacting an important witness.
- The claim or defence is of a highly complicated and/ or technical nature so it can only be properly understood with all the evidence that would be available at a full trial.
- The need to hear from witnesses
Application for Summary Judgement - When are there no real prospects of a claim or defence succeeding?
Where the claim or defence is ‘merely fanciful, imaginary, unreal or intrinsically unrealistic’
When should an application for summary judgment be dismissed ?
- Where ‘an apparently credible witness says one thing and another apparently credible witness says the opposite, and there is not conclusive circumstantial evidence pointing one way or the other’.
- So ‘credible’ and ‘incredible’, ‘conclusive’ and ‘inconclusive’, ‘plausible’ and ‘implausible’ are useful expressions for advocates to include in their submissions
Application to set aside a default judgment (structure)
1) Mandatory power (judgement entered wrongly)
2) Discretionary power
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside; or
(ii) the defendant should be allowed to defend the claim.
3) Application for relief from sanctions (An application to set aside a judgment in default is also an application for relief from sanctions)
a) Denton v White factors
1) The seriousness of the breach (if it is not serious then the court is more likely to grant relief)
2) The reason for the breach (if the reason was due to a serious incident or illness the court is more likely to grant relief).
3) Evaluate all the circumstances of the case so as to enable the court to deal justly with the application.
Application to set aside default judgment (Mandatory Power)
MANDATORY POWER to set aside if the Judgment was wrongly entered. For example if:
1. Judgment was entered too early
- 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.
Application to set aside default judgment (Discretionary Power)
DISCRETIONARY POWER to set aside if the applicant can show:
(a) the defendant has a real prospect of successfully defending the claim; or
- Tell the court what the defence is
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
Why might a default judgement be entered ?
A default Judgment may be granted by the Court in the absence of a hearing if the Defendant fails to submit a defence and the Claimant makes an application for summary Judgment (deadlines are 14 days from service of the claim or 28 days, if an acknowledgment of service is filed within 14 days).
What are the good reasons mentioned in the discretionary ground to set aside default judgement
Good Reasons
- D was ill or away on holiday so they could not respond within the time constraints.
- D was unfamiliar with the legal process, or had no legal representation.
Application to strike out a statement of case
DISCRETIONARY POWER for the court to make an order if the applicant can show:
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that there has been a failure to comply with a rule, practice direction or court order.
(CPR 3.4)
Note: Consideration should be given to whether strike out would be disproportionate. So, the overriding objective of the CPR plays a significant role.
Examples of statement of cases that may be struck out
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) 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.
Example for Defence:
(1) it consists of a bare denial or otherwise sets out no coherent statement of facts, or
(2) the facts it sets out, while coherent, would not amount in law to a defence to the claim even if true.
Application for an interim payment
DISCRETIONARY POWER for the court to make an order for an interim payment if the below conditions are satisfied.
Part 25 (CPR) Grounds
- the defendant has admitted liability
- the claimant has obtained judgment against that defendant for damages to be assessed but the sum to be paid has not yet been assessed; and
- the court is satisfied that, (1) if the action proceeded to trial the claimant would win and (2) obtain judgment for a substantial sum
- High burden must prove on the balance of probabilities
Factors to consider for an interim payment
1) Urgent need
- It is not necessary to have a specific need for payment, but, if there is an urgent need for payment then it is always useful to submit these points to the court when making an application.
2) Promptness of application
3) (Payment) reasonable propotion of the likely amount.
- Must be a reasonable proportion of likely final amount. There is no set rule to this, but courts have awarded 75% or more of the anticipated damages.
4) Payment would not be prejudicial
Application to adjourn a hearing/trial and factors to consider
DISCRETIONARY POWER to adjourn or bring forward a hearing they must consider the overriding objective CPR 1.1 (set out below).
5 main factors of consideration are:
* 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.
Application for an interim injunction and factors (American Cyanamid) ?
DISCRETIONARY POWER to grant an interim injunction if the applicant has provided a cross undertaking in damages.
- May only be granted when damages are not an adequate remedy for the applicant.
- The status quo and why the court should preserve it.
FACTORS TO GRANT INJUNCTION
Whether;
a) there is a serious question to be tried;
b) damages are an adequate remedy for either side; (state that the Claimant’s cross-undertaking in damages will provide adequate protection for the Defendant)
c) the balance of convenience lies in favour of granting or refusing the injunction; (talk about the merits of the case) and
d) whether there are any special factors.
What is a cross undertaking
For the Claimant, this may be that they will undertake that they will compensate the Defendant for any loss suffered by the injunction, if later determined as something that should not have been granted.
For the Defendant, instead of contesting such an application they may give an undertaking to comply with the injunction and the Claimant will be required to give an undertaking like the above.
Application for security for costs
DISCRETIONARY POWER to make an order for security for costs if the court is:
(a) is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and
(b) one or more of the conditions in Part 25 applies
Security for costs - Part 25 Conditions
a) the claimant is –
(i) resident out of the jurisdiction; and
(ii) not resident in a State bound by the 2005 Hague Convention (includes EU and the UK)
b) the claimant is an impecunious company (facing financial hardship and potentially unable to meet its financial commitments)
(c) there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;
(d) the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him. (also relevant for Freezing Injunction)
Security of costs - Justness (factors for the court to consider)
a) The strength of the claim and the defence: the less likely the defendant is to win at trial, the less justified they are in seeking security.
(b) The claimant’s ability to provide security: where the claimant has a reasonable prospect of success, the courts will be reluctant to make an order for security with which they cannot comply as the effect will be to stifle the claim.
(c) The causes of the claimant’s impecuniosity: the claimant may be able to persuade the court that their poor finances are caused by or contributed to by the defendant’s behaviour.
(d) Property within the jurisdiction: where the application is made against a claimant resident outside the EU, the court is unlikely to grant security if they have sufficient assets within the jurisdiction that would be available to meet the defendant’s costs.
(e) Promptness / The timing of the application: the order should be applied for as soon as practicable.
When are sanctions imposed on a party ?
If a party fails to comply with any rule, practice direction or court order
What is standard practice to do if you are representing a party who is in breach of CPR rules
it is standard practice to APOLOGISE to the Court on behalf of the client for their breach and then explain the reasoning why this has occurred.
Application for relief from sanctions - Denton v White
DISCRETIONARY POWER - On relief from sanctions the court will consider all the circumstances of the court, and the proportionality with the overriding objectives.
Denton v White Factors
1) The seriousness of the breach (if it is not serious then the court is more likely to grant relief)
*Serious breach example: Late filing of cost budget
2) The reason for the breach (if the reason was due to a serious incident or illness the court is more likely to grant relief).
3) Evaluate all the circumstances of the case so as to enable the court to deal justly with the application.
i) whether the trial date could still be met and
ii) the effect the failure to comply and the granting of relief would have on each party
Specific disclosure
DISCRETIONARY POWER
(1) The court may make an order for specific disclosure or specific inspection.
- carry out a more extensive search; and
- disclose any further documents located as a result of that search; or
*disclose specific documents that the party would have expected to see.
Witness Statement
The application will require a witness statement in support. This should explain why the applicant believes the document exists, perhaps because the party has seen it previously, and justify the application.
It may be that the document is vital to establish an issue such as liability or the information contained will enable the party to pursue a line of enquiry into the disputed facts.
Standard disclosure
Standard disclosure requires a party to disclose only–
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.
