Dispute Resolution Tests Flashcards
How do you address a District Judge?
Judge
How do you address a Circuit Judge?
Your Honour
How do you address a High Court Master?
Judge
How do you address a High Court judge and above?
My Lord/Lady
What are some aims of the overriding objective?
- Ensure the parties are on equal footing
- Save expense
- Deal with cases in ways proportionate to the money involved, the importance and and complexity of the case, and the financial position of the parties etc
- Ensure the case is dealt with expeditiously and fairly
- Allot the appropriate share of court resource
- Enforce compliance with rules, practice directions, and orders
What is the test to set aside a default judgment?
The court must be satisfied that:
1. The defendant has a real prospect of successfully defending the claim; and
2. There is some other good reason why the judgment should be set aside and the defendant allowed to defend the claim.
It will be considered if the defendant acted promptly
When MUST the court set aside default judgment? (4 reasons)
If the defendant can show it was a judgment wrongly entered, e.g.:
1. Judgment was entered too early.
2. The application for judgment 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.
3. The claim has already been paid or the claim settled.
4. The defendant had already submitted a request for time to pay which has not yet been considered.
What is the test to strike out the other party’s case? (3 examples)
The court has DISCRETION to strike out a case if:
- The statement of case discloses no reasonable grounds for bringing or defending the claim.
- The statement of case is an abuse of the court’s processes.
- There has been a failure to comply with a rule, practice direction, or order.
What is the test for summary judgment?
The court has DISCRETION to award summary judgment if:
1. The other party has no real prospect of success; and
2. There is no other compelling reason why the case should be disposed of at trial, i.e. the court has all information it needs to make a decision on the merits of the underlying claim, and there is no reason to waste court time at a trial.
The application can only be made once the Particulars and acknowledgment/defence have been served.
What is the structure for an application for an interim payment?
- Explain what the payment will be used for.
- Request a specific sum.
- Show the sum is a reasonable proportion of the likely damages.
- Consider contributory negligence, counterclaims etc.
The application can only be made once the time for filing an acknowledgement has expired.
When do the courts have DISCRETION to award an interim payment? (4 examples)
- The defendant has admitted liability.
- The claimant has obtained judgment.
- The court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial amount.
- If the claim is against two or more defendants, 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 carries insurance).
What is the test for an interim injunction?
The applicant must show:
1. There is a serious question to be tried;
2. Damages would not be an adequate remedy; and
3. The balance of convenience favours an injunction.
The applicant can offer an undertaking in damages to support this.
What are the 6 grounds to discharge an injunction?
- Material non-disclosure, i.e. not all relevant information was provided.
- Failure of the applicant to comply with terms on which the injunction was granted.
- The facts do not justify an injunction.
- The injunction is oppressive.
- There has been a material change in the circumstances of the parties or in the law since the injunction was granted.
- The claimant has failed to prosecute the claim with due speed.
What is the test for 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.
Defendant can discharge this by offering security or showing the claimant is guilty of material non-disclosure.
What is the test for a search order?
- There is a strong prima facie case on the merits of the underlying claim;
- The defendant’s activities cause very serious potential or actual harm to the claimant’s interests; and
- There is clear evidence that the property or documents are in the defendant’s possession and there is a real possibility the material may be destroyed before an application can be made on notice.
