Dispute Resolution Application Tests

Question 1

How do you address Hill J?

Answer 1

My Lord/ My Lady

Question 2

How do you address Master Hill?

Answer 2

Judge

Question 3

How do you address HHJ Hill?

Answer 3

Your Honour

Question 4

How do you address DJ Hill?

Answer 4

Judge

Question 5

What is the test for an application for summary judgment?

Answer 5

The court has discretionary power to give summary judgment if applicant can show:

1. The claimant has no real prospect of successfully succeeding on the claim or issue,
   OR
2. The defendant has no real prospect of successfully defending the claim or issue,
   AND
3. There is no other compelling reason why the case or issue should be disposed of at trial

Question 6

What can an application for summary judgment sometimes be combined with?

Answer 6

Application to strike out the claim

Question 7

What is the test for an application for setting aside default judgment?

Answer 7

It is mandatory for the court to set aside the judgment if the judgment was wrongly entered.

The court has a discretionary power to set aside if the applicant can show:
1. They have a real prospect of successfully defending the claim,
OR
2. It appears to the court that there is some other good reason why the judgment should be set aside, or the defendant should be allowed to defend the claim.

The court must also consider whether the application to set aside default judgment was made promptly

Question 8

What is included in a judgment being wrongly entered when applying for default judgment to be set aside?

Answer 8

Judgment wrongly entered includes:
i. Judgment was entered too early,

ii. application for judgment was made after an application had been issued by the defendant to strike out the claim or dismiss the claim summarily & the application has not yet been considered by the court,

iii. the claim has already been paid or the claim settled, or

iv. the defendant had already submitted a request for time to pay which has not yet been considered

Question 9

What is the test for an application for security of costs?

Answer 9

The court has a discretionary power to order security for costs if the applicant can show one or more of the following grounds:

1. The claimant is a resident outside the jurisdiction,
2. The claimant is a company or other body + there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so,
3. The claimant has changed address since the claim was started with a view to evading the consequences of litigation,
4. The claimant failed to provide an address or gave an incorrect address on the claim form,
5. The claimant is acting as a nominal claimant (someone suing for the benefit of another person),
6. The claimant has taken steps in relation to assets that would make it difficult to enforce an order for costs against them (e.g., moving them out of the jurisdiction of the courts of England and Wales).

Question 10

What is a prohibitory injunction?

Answer 10

Prevents someone from taking an action

Question 11

Who can apply for an interim prohibitory injunction?

Answer 11

The claimant

Question 12

What is the test when applying for an interim prohibitory injunction?

Answer 12

The court has a discretionary power to grant an injunction if the applicant can show that:
i. there is a serious question to be tried,
ii. damages would not be an adequate remedy for the loss, and
iii. the balance of conveniences lies in favour of the injunction, and
iv. if appropriate, the applicant can offer a cross undertaking in damages

Question 13

What is a cross-undertaking when applying for an interim prohibitory injunction?

Answer 13

An undertaking that the claimant will compensate the defendant for any loss suffered because of the injunction if the court determines later that the injunction should not have been granted in the first place.

Question 14

What are the grounds for discharge of an interim prohibitory injunction?

Answer 14

A defendant seeking the discharge of an injunction must apply on notice to a judge of the division in which the claim is proceeding.

The grounds may be:
1. Material non-disclosure
2. Failure of the applicant to comply with the terms on which the injunction was granted
3. The facts do not justify interim injunction relief
4. The injunction is oppressive
5. There has been a material change in the circumstances of the parties or in the law since the injunction was granted, and/or
6. The claimant has failed to prosecute the claim with due speed

Question 15

What is the test for an application for a freezing injunction?

Answer 15

To grant a freezing injunction, the court must be satisfied that:
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.

Question 16

What is likely to be included if the court grants a freezing injunction?

Answer 16

A. Undertakings by the claimant:
- as to damages,
- to notify the defendant of the order,
- to inform third parties, such as banks, of their right to apply for directions or variation, and
- to indemnify a third party in respect of expenses incurred in complying and compensate for loss suffered as a result of the making of the injunction,

B. The amount frozen should not exceed the maximum amount of the claim.

C. The order must state the period of time for which the order is to last.

Question 17

What are the grounds for applying to discharge a freezing injunction?

Answer 17

The defendant can apply for a discharge of a freezing injunction if:
i. they offer security for the claimant’s claim (e.g., payment into court), or
ii. show that the claimant is guilty of material non-disclosure

Question 18

When may a party ask the court to make a search order?

Answer 18

If it is clear that the defendant will not obey the rules relating to disclosure and may seek to destroy incriminating documents or property, the other party can ask the court to make a search order.

Question 19

What test applies for making an application for a search order?

Answer 19

The court will grant the order only if the court considers it essential + there is no alternative.

Grounds necessary to grant search order:
1. There must be a strong prima facie case on the merits of the underlying claim,

2. The defendant’s activities (the steps the defendant is taking in an attempt to avoid paying a judgment) must cause very serious potential or actual harm to the claimant’s interests, and
3. There must be clear evidence that the property or documents are in the defendant’s possession + there is a real possibility that the material may be destroyed before an application can be made on notice.

Question 20

What is the test for making an application for directions?

Answer 20

The court has power to make or vary directions further to its general case management powers.

You should justify the directions you seek by reference to the relevant CPR rule governing that application.

You should also justify the directions you seek by reference to how they will further the overriding objective to deal with cases justly + proportionately

Question 21

What is the aim of the overriding objective?

Answer 21

Aim is to:
1. Ensure that the parties are on an equal footing,

2. Save expense,
3. Deal with cases in a way that is proportionate to the money involved, the importance of the case, the complexity of the case, and the financial position of the parties,
4. Ensure that the case is dealt with expeditiously and fairly,
5. Allot the appropriate share of court resource, and
6. Enforce compliance with rules, practice directions, and orders

Question 22

What is the test for an application for an unless order?

Answer 22

The court have a discretionary case management power to make an order if the applicant can show:

1. The other party is in breach of a court order, and
2. They have complied with the order, and
3. The order would be in the interest of the overriding objective to enforce court orders and deal with cases fairly, justly, and at proportionate cost

Question 23

What is the test for an application to strike out?

Answer 23

The court has discretionary power to make an order if the applicant can show:
1. that the statement of case discloses no reasonable grounds for bringing or defending a claim, e.g., because the POC disclose no cause of action recognised in the law of E+W or the defence is a bare denial,

2. the claim/defence is an abuse of process,
3. there has been a failure to comply with a court order, procedural rule, or payment of court fees

Question 24

What is needed for a Statement of Case to be adequate?

Answer 24

The Statement of Case must provide:
i. details of the cause of action,
ii. the exact nature of the allegations, and
iii. the financial consequences

Question 25

When will a court generally not strike out a claim?

Answer 25

A court will generally not strike out a claim for non-compliance with a direction unless the non-defaulting party has applied for an unless order + the unless order has not been complied with.

Question 26

What can an application to strike out the claim be combined with?

Answer 26

An application for summary judgment

Question 27

When might a party want to apply for relief from sanctions?

Answer 27

1. if the claim/defence has been struck out for noncompliance with a rule, practice direction, or court order, or
2. financial sanctions for non-payment of court fees.

etc

Question 28

What is the test for an application for relief from sanctions?

Answer 28

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction, or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need:
1. for litigation to be conducted efficiently and at proportionate cost, and
2. to enforce compliance with rules, practice directions and orders

Question 29

How does case law provide guidance on how the court should approach the test for deciding on whether to grant relief from sanctions?

Answer 29

Case law provides guidance on how the court should approach this test by providing a 3-stage approach.

The court should:
1. First consider the seriousness of the non-compliance.
- If the breach is not serious then discretion should be exercised + the court does not proceed with stage 2 and 3
- If the breach is serious, move to stage 2.

2. Why did the non-compliance occur?
   - Court will assess why the breach occurred + whether there was a good reason.
   - Trivial errors or mistakes are unlikely to be a good reason for a serious breach.

The court will move on to Stage 3

3. All circumstances to deal proportionately, efficiently, and enforce compliance.
   - Here the court will consider whether the application was made promptly, previous breaches + whether the sanction is appropriate.

The court will consider proportionality and the overriding objective in addition to this criteria.

Question 30

What is not a good enough reason for non-compliance to result in relief from sanctions?

Answer 30

It is not good enough for a party to show that they have finally complied with an order

Question 31

What is the test for an application for adjournment or stay of proceedings?

Answer 31

The judge has discretionary case management powers to manage cases so they further the overriding objective –> to deal with cases, fairly, justly + at proportionate cost.

1. Explain why the adjournment/stay is necessary
2. Show why it is in the interest of the overriding objective to adjourn/stay the proceedings,
3. Prompt application after the need for an adjournment/stay has arisen

Question 32

What structure should you use if making an application for Track Allocation?

Answer 32

Track Allocation is at the discretion of the judge using the court’s case management powers.

1. Set out the facts of the case
2. Refer to the factors considered in track allocation:
   i. value of the claim,
   ii. does the claim involve a protected party or personal injury?
   iii. is the claim complex? - subject matter/evidential issues/test case
3. Conclude with a track recommendation

Question 33

What will the court consider when allocating a case to a track?

Answer 33

The court will consider:
1. The financial value of the claim (basis of most allocations)
2. The remedy sought,
3. The complexity of the case,
4. The value of any counterclaim,
5. The number of parties,
6. The amount of oral evidence
7. The importance of the claim to non-parties, and
8. The circumstances of the parties

Question 34

What is the test for an application for interim payment?

Answer 34

The court has a discretionary power under the CPR to grant interim payment.

The claimant must show:
1. The defendant has filed the Acknowledgment of Service,

2. Establish that at least 1 condition for an interim payment has been met,
3. Explain what the interim payment will be used for,
4. Request a specific sum for the interim payment or instalment payment
5. Demonstrate that the sum requested is a reasonable proportion of the likely damages
6. Address the court, if appropriate, on:
   a. contributory negligence, and
   b. any relevant set off or counterclaim

Question 35

What are the conditions for an interim payment?

Answer 35

A. the defendant has admitted liability.

B. the claimant has obtained judgment against the defendant.

C. if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant.

D. specific conditions for an order for possession of land (usually not relevant in DR)

E. if there are 2 or more defendants, the following conditions are satisfied:
i. the court is satisfied that, if the claim went to trial, the claimant would obtain judgment of a substantial amount against at least 1 of the defendants (but the court cannot determine which), and
ii. all of the defendants are either:
a. insured,
b. a defendant whose liability will be met by an insurer under the Motor Insurers Bureau Agreement, or
c. the defendant is a public body.

Question 36

When can the court not award an interim payment?

Answer 36

Interim payments are always discretionary + the court cannot award an interim payment if doing so would cause an injustice

Question 37

What should the applicant do before making an application for interim payment?

Answer 37

The applicant should always invite the respondent to make an interim payment before making an application

Question 38

What is an application for interim payment sometimes combined with?

Answer 38

An application for summary judgment.

If the court grants summary judgment, the court will consider whether it is appropriate to award an interim payment.

Question 39

What is not necessary when applying for an interim payment, but should be included?

Answer 39

It is not necessary for the court to be satisfied that there is a specific need for the payment.

However, if there is an urgent requirement for funds, e.g., where the claimant cannot work, or if the money will be put towards a particular use, e.g., for treatment costs or cost of care, it is always worth including this within the supporting evidence

Question 40

How much can be awarded on a successful interim payment application?

Answer 40

The court cannot award an interim payment that is more than a reasonable proportion of the likely amount of the final judgment.

To do so would cause an injustice.
No set rule, but the courts have awarded 75% or more of the claimant’s anticipated damages in appropriate cases.

Question 41

What is the application for pre-action disclosure?

Answer 41

1. the respondent is likely to be a party to proceedings,
2. the applicant is likely to be a party to proceedings,
3. the documents, or classes of document, requested would be disclosed under standard disclosure rules, and
4. disclosure now would fairly assist in disposing of the claim without the need to issue proceedings + save costs

Question 42

When can pre-action disclosure from a non-party be sought?

Answer 42

Only if:
1. It will support the claim or adversely affect the opponent’s case and
2. It is necessary to dispose of the matter fairly or to save costs

Question 43

What is the test for an application for pre-action inspection of property?

Answer 43

The applicant must show that the property in question:

1. Is, or may become, the subject matter of the proceedings, or
2. Is relevant to the issues that will arise in relation to those proceedings.

Question 44

What is the test for an application for permission to withdraw an admission?

Answer 44

In deciding whether to permit this, the court will consider:

1. The prejudice to the parties,
2. The reasons why the admission was made,
3. The stress that a party was under when they made the admission,
4. The interests of the public, and
5. The time when the application to withdraw the admission was made, e.g., pre- or post-action

Question 45

What is the test for an application to object to a request for information?

Answer 45

The grounds for objecting to a request for further information are:

1. The request is unnecessary, irrelevant, or improper,
2. The responding party is unable to provide information or clarification,
3. The party requesting the information gave an insufficient time to reply,
4. The expense of complying with the request would be disproportionate to the claim or contrary to the overriding objectives of the CPR, and
5. The responding party is protected from answering by existing privilege

Question 46

What is the test for an application to add a new party?

Answer 46

Application with supporting evidence is required.

The court can add a new party if:

1. It is desirable to add a new party so that the court can resolve all matters in dispute in the proceedings, or
2. There is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings + it is desirable to add the new party so that the court can resolve the issue.

Question 47

What is the test for an application to remove a party?

Answer 47

The court can order a person to cease to be a party if it is not desirable for them to be a party in the proceedings

Question 48

What is the test for an application for the court to substitute a party?

Answer 48

The court can substitute a new party for an existing party if:

1. The existing party’s interest or liability has passed to the new party, and
2. It is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.

Question 49

What is the test for an application to add/substitute a new party after limitation has expired?

Answer 49

If the limitation period for the claim against the new party has expired, the court can add or substitute a party only if:

1. The relevant limitation period was current when the proceedings were started, and
2. The addition or substitution is necessary

Question 50

Application to add/substitute a new party after limitation has expired - what is needed for the substitution to be necessary?

Answer 50

To determine that the substitution is necessary, the court must be satisfied that:

1. The new party is to be substituted for a party who was named in the claim form in mistake for the new party,
2. The claim cannot be properly carried on by or against the original party unless the new party is added or substituted as claimant or defendant,

OR

3. The original party has died or had a bankruptcy order made against them + their interest or liability has passed to the new party.

Question 51

What is the test for an application to set aside a decision in the Small Claims Court?

Answer 51

A party may apply to set aside a decision in the small claims court if they were not in attendance at the hearing.

They need to make an application within 14 days of service of the order showing:
1. they had good reason for not attending, and
2. their claim or defence has reasonable prospects of success

Question 52

What is the test for an application for specific disclosure?

Answer 52

The court can make an order for specific disclosure, requiring that a party disclosure/search for documents that:

1. It has a reason to believe may contain information which will assist the applicant’s case or damage the respondent’s case,

OR

2. May lead to a train of enquiry which has either of the consequences above.

Question 53

When may the need for specific disclosure arise?

Answer 53

May arise if a party believes that another party’s disclosure is inadequate.

Disclosure may be inadequate if e.g.,
- documents referred to in the Statement of Case or correspondence haven’t been disclosed or
- the client or a witness might refer to a document or documents which do not appear.

Question 54

What is the test for an application for oral expert evidence?

Answer 54

For the court to agree oral evidence, the party requesting the oral evidence must establish that:

1. Expert oral evidence is likely to have an impact on the outcome,
2. It will assist the judge,
3. There is a risk of injustice if the expert evidence is not tested, and
4. The costs of the experts attending are not disproportionate

Question 55

What is the test for an application for appeal?

Answer 55

There are only 2 grounds for appealing a decision of a lower court:

1. The decision is wrong in fact, law, or the exercise of the court’s discretion
2. The decision is unjust because of serious procedural or other irregularity in the proceedings

Question 56

When will a decision be wrong in fact?

Answer 56

If the judge records key evidence from a witness incorrectly in their judgment

Question 57

When will a decision be wrong in law?

Answer 57

If the judge applied the law incorrectly to the case, e.g., by:
- misunderstanding the law, or
- applying it by considering themselves to be bound by a previous authority which is not in fact binding.

Question 58

What is the test for an application for a wasted costs order?

Answer 58

The court can make a ‘wasted’ costs order if a solicitor’s conduct has been improper, unreasonable, or negligent.

The court must be satisfied that:
1. The legal representative acted improperly, unreasonably, or negligently,

2.The conduct caused unnecessary cost, and

3. It is ‘just’ to make the order

Question 59

What is the test for an application to withdraw/vary a Part 36 offer after acceptance?

Answer 59

The court will give permission to withdraw or change the terms of the offer if it has been satisfied that:

1. There has been a change of circumstances since the offer was made, and
2. It is in the interests of justice to give permission.

Otherwise, the acceptance will be effective.