Dispute Resolution Tests Flashcards
What are the grounds for summary judgment?
- The claimant has no real prospect of succeeding / defendant has no real prospect of successfully defending the claim
AND
- There is no other compelling reason why the case/issue should go to trial
What is the purpose of a summary judgment application?
- C or D can apply
- Allows the court to dispose of claims without the need for trial
What is an application to set aside default judgment?
Default judgment can be aside by the defendant
- default judgment occurs if the defendant fails to respond to proceedings on time
- procedural application (no consideration of the merits)
What are the mandatory grounds for setting aside default judgment?
The court MUST set the judgment aside if:
- it was wrongly entered
- time limit had not expired
- Acknowledgement of service or defence had in fact been filed on time
- summary judgment or strike out had been applied for before judgment was entered
- D had satisfied the whole claim before judgment was entered
What are the discretionary grounds for setting aside default judgment?
- D has a real prospect of successfully defending the claim
OR
- There is some other good reason why judgment should be set aside
What additional considerations are there for the courts regarding setting aside default judgment?
- The court must act in accordance with overriding objective
- Must be brought promptly
- Test for applying for relief from sanctions (Denton)
What is an application for security for costs?
An application made by the defendant where there is a concern that C will not be willing or able to pay D’s costs should the claim be successfully defended
- relates solely to the costs of the claim (not damages)
- the court has discretion - even if conditions are made out, does not have to grant it
What are the grounds for security for costs?
The defendant must satisfy the court of two matters:
- having regard to all circumstances, it is just to make an order
AND
- one or more of the prescribed conditions are satisfied
What are the prescribed conditions?
- C is a resident outside the jurisdiction
- C is a company and there is reason to believe it is unable to pay
- C has taken steps in relation to its assets that would make enforcement difficult
What are the other considerations for security for costs?
(Sir Lindsay Parkinson v Triplan)
- admission of liability by D or substantial open offers make D’s application less likely to succeed
- delay makes it less likely to succeed
- if D is responsible for C’s financial difficulties, D is less likely to succeed
- claim which appears not genuine or little prospect of success makes D’s application more likely to succeed
What is an interim prohibitory injunction?
It is an order of the court requiring a party to refrain from doing a given act
- claimant makes an application
- equitable and discretionary remedy
- application must be supported by written evidence
- court will often only grant one if applicant offers cross-undertaking to pay damages to respondent
- if it is a without notice application, the applicant must make full and frank disclosure of all matters
What are the grounds for interim prohibitory injunction?
An injunction may be granted where it is just and convenient
American Cyanamid v Ethicon guidelines
1. Serious question to be tried?
2. Would damages be an adequate remedy? (damages for applicant? damages for respondent?)
3. Where does the balance of convenience lie?
- Equitable principles apply: must be a practical purpose, applicant must come with clean hands, must be prompt
What is an application for directions?
- Must justify directions by reference to CPR rules and overriding objective (deal with cases justly and proportionately)
- Application by C or D
What is an application for relief from sanctions?
Sought when a party fails to comply with court rules or orders
- court considers the seriousness of non-compliance
What is the test for relief from sanctions?
Dentons and others v TH White (Dentons)
- Identify and assess the seriousness and significance of failure to comply
- serious/significant = whether it has imperiled future hearing dates or disrupted conduct of litigation - If the breach is serious or significant, consider why default occurred?
- Having considered the reason for default, the court evaluates all circumstances of the case (consider in particular CPR 3.9)
- litigation conducted efficiently and at proportionate cost
- court must enforce compliance with rules, PD and orders
What is a stay of proceedings?
- Parties can request a stay of proceedings to assist/explore ADR and settlement
- Party requesting a stay must explain its necessity clearly
- Court evaluates whether the stay aligns with the overriding objective of fair and just proceedings
- Promptness is crucial: delays weaken argument
What is an interim payment?
- Claimant applies
- Application by C for payment on account of damages, debts or other sum (except costs) which D may be held liable to pay C
- discretionary
- C must demonstrate a reasonable sum is requested and address contributory negligence and any set-off or counter claim
What are the grounds for interim payment?
The court will only make an order where one of the following conditions are satisfied:
- D has admitted liability to pay damages to C; or
- C has obtained judgment against D for damages to be assessed; or
- If the claim went to trial, C would obtain judgment for a substantial amount of money
What are the submission for interim payment, if claim went to trial, C would obtain judgment for substantial amount?
- Claimant will obtain judgment = prove the elements of the claim
- Judgment for a substantial sum (if there is a large sum, this point is not in dispute and can be dealt with quickly)
- A reasonable proportion is sought, taking into account contributory negligence (proportionate = overriding objective)
What is a track allocation application?
- C or D makes the application
- track allocation is at the judge’s discretion, considering various factors such as claim value and complexity
Factors include:
- involvement of protected parties
- nature of the claim
- value and complexity
What is an application for leave to call additional witness evidence?
- Party must clearly explain why they need to call an additional witness, including details about the new witness and why it is crucial to the case
Court considers (overriding objective):
- materiality of the evidence
- reasons for delay in disclosure
- prejudice to the other party
What is a freezing injunction?
- The purpose is to preserve the value of assets until judgment is obtained
- Can be used to stop the dissipation of assets in anticipation of a judgment
How must evidence be given for a freezing injunction?
Evidence is given by affidavit
What must be satisfied for a freezing injunction to be granted?
- It is often a without notice application
- It is only granted if it is justified on ‘appropriately clear and strong facts and risks’
It must be:
- just and convenient
- there must be an underlying claim
- English court has jurisdiction
- Claimant has a good, arguable case
- Existence of assets
- Risk of dissipation
- Applicant must provide an undertaking in damages
What is an application for strike out?
The court can strike out whole or part of statements of case which disclose no reasonable grounds for bringing or defending a claim or which is an abuse of process
- for cases which do not amount to a legally recognisable claim / defence
What are the grounds for strike out?
a) Statement of case discloses no reasonable ground for bringing or defending the claim (matter of law)
b) Statement of case is an abuse of court’s process or otherwise likely to obstruct just disposal of proceedings (misuse of procedure or vexatious claim)
c) There has been a failure to comply with rule, practice direction or order
If a fair hearing is still possible, the court is more likely to make an order for a sanction for non-compliance
What is pre-action disclosure?
Used before proceedings have started
- Court may allow a party to obtain disclosure of documents
- Court has discretion
When will a court grant an application for pre-action disclosure?
ALL of these conditions must be satisfied:
a) Respondent is likely to be a party to subsequent proceedings
b) Applicant is likely to be a party to those proceedings
c) If proceedings had started, respondent’s duty by way of standard disclosure would extend to documents which applicant seeks
d) Pre-action disclosure is desirable to:
i) dispose fairly of anticipated proceedings
ii) assist the dispute to be resolved without proceedings
iii) save costs
- If all are satisfied, the court MAY order pre-action disclosure
