Dispute Resolution Applications

Question 1

When can a claimant apply for judgment in default?

Answer 1

If the defendant fails to file a defence within the specified period

Question 2

What is the consequence if a default judgment is granted?

Answer 2

The defendant is not permitted to defend the claim and 1) to pay the specified amount (in a specified claim) OR pay a sum in damages to be decided by the court (in an unspecified claim)

Question 3

If a defendant applies to set aside a default judgment, what is the test the court considers?

Answer 3

The court must be satisfied that:

• The defendant has a real prospect of successfully defending the claim; AND
• There is some other good reason why the judgment should be set aside and the defendant allowed to defend the claim

Question 4

When MUST the court set aside judgement in default?

Answer 4

When it has been wrongly entered.

Question 5

What are four key examples of when a judgment in default may have been wrongly entered?

Answer 5

• Judgement was entered too early
• The application for judgement was made after an application had been issued by the defendant to strike out the claim or dismiss the claim summarily and the application has not yet been considered by the court
• The claim has already been paid or settled
• The defendant had already submitted a request for time to pay which has not yet been considered

Question 6

What must the defendant do when applying to set aside a judgement in default?

Answer 6

Act promptly

Question 7

What may the court do when setting aside judgment in default and allowing a defendant to defend a claim?

Answer 7

• Impose conditions on the defendant (such as paying a sum into court)

Question 8

What is an unless order?

Answer 8

If a party defaults on a procedural step, the other party may make an application for an unless order. If granted the court will specify the penalty that will be imposed unless the defaulting party complies.

Question 9

What factors will the court consider when deciding to grant relief from sanctions?

Answer 9

1. The overriding objective
2. Proportionately
3. Seriousness of the breach
4. The reasons for the breach

Question 10

On what period of notice should an interim application usually be made?

Answer 10

3 days notice before the hearing.

Question 11

What should an applicant for an interim application file and serve no later than two days before the hearing?

Answer 11

A case summary and proposed draft order

Question 12

When is notice of an interim application not necessary?

Answer 12

If giving notice may defeat the purpose of the application or create an injustice.

Question 13

What is the procedure for an application made without notice?

Answer 13

1. It must include evidence explaining why notice was not given.
2. If an order is made on the without notice application, it must be served on the other party with the notice and supporting evidence. The other party then has 7 days in which to make an application to vary or set aside the order.
3. If a party make an application without notice erroneously, the court is likely to dismiss it with a wasted costs order (the SOLICITOR pays the other sides legal costs associated with the application).

Question 14

What is the legal test for summary judgement?

Answer 14

1. The claimant/defendant has no real prospect of succeeding on the claim
2. There is no other compelling reason why the case should be disposed of at trial.

Question 15

What is the legal test for a strike out application?

Answer 15

1. The statement of case disclosed no reasonable grounds for bringing or defending the claim; OR
2. The statement of case is an abuse of the courts process; OR
3. There has been a failure to comply with a rule, practice direction, or order.

Question 16

After what events have occurred can an application for summary judgement be made?

Answer 16

1. The claimant has served the PoC
2. Defendant has filed a defence or AoS

Question 17

On what period of notice should an application for summary judgement be made?

Answer 17

14 days before the hearing.

Question 18

What are the grounds for which a court may order an interim payment?

Answer 18

1. The defendant has admitted liability
2. The claimant has obtained judgment
3. The court is satisfied that if the claim proceeded to trial, the claimant would obtain judgment for a substantial sum
4. If the claim is against two or more defendant’s, the court is satisfied that if the action went to trial, the claimant would obtain judgment for a substantial sum against at least one and each defendant’s carries insurance.