Dispute Resolutions - Types of Applications Flashcards
Judgement in default
Only the claimant can make the application under Civil Procedural Rules Part 12 Rule 8
Requirements:
1. Defendant did not file an acknowledgment of service or defence within time limits
2. Claimant must show that they filed a certificate of service, that the application was made on notice and with all relevant evidence, their claim has not been admitted or satisfied, AND the Defendant has not made an application for a summary judgement of strike out
Setting aside a judgement in default (mandatory grounds)
Only the Defendant can make the application under Civil Procedural Rules Part 13 Rule 2 (the court must set aside if the judgment in default was wrongly entered)
Requirements:
1. The acknowledgement of service/defence was served within the time limit;
2. The Defendant applied for a summary judgement or strike out before the judgment in default was issued; or
3. The Defendant has satisfied or admitted the claim before the the Claimant applied for a judgment in default
The court must also consider whether the application to set aside a default judgement was made promptly
Setting aside a judgement in default (discretionary grounds)
Only the Defendant can make this application under Civil Procedural Rules Part 13 Rule 3 (discretionary power for the court to set aside if the applicant can satisfy the test requirements)
Requirements:
1. The Defendant has a real prospect of defending the claim before; OR
2. There is some other good reason why the application should be set aside or varied, or there is a good reason why the Defendant should be allowed to defend the claim.
The court must also consider whether the application to set aside a default judgement was made promptly
Summary judgement
Can be brought on by the Claimant or Defendant under Civil Procedural Rules Part 24 Rule 2
A summary judgement application must be based on either (1) a point of law (i.e., how a document used in the proceedings should be interpreted), OR (2) an evidence which is reasonably expected to be made available at trial or the absence of such evidence.
Test Requirements:
1. The Claimant has no real prospect of succeeding on the claim or defending from the claim; AND
2. There is no other compelling reason why the case should be disposed at trial.
Grounds for a summary judgement - compelling reasons
- Disputed facts and needs time to investigate
- Very complex case
- Right to trial by jury
- Needs to contact witnesses
Strike out
Can be brought on by Claimant or Defendant under Civil Procedural Rules Part 3 Rule 4 (the court has discretionary power to make this order if the applicant can satisfy the test requirements)
Requirements:
1. The statement of case discloses no reasonable grounds for bringing or defending the claim (i.e., if there is no cause of action, or if a defence is just bare denial);
2. The claim or defence is an abuse of court process; OR
3. There has been a failure to comply with a court order, procedural rule, or payment of court fees
Security for costs
Only the Defendant can make this application under Civil Procedural Rules Part 25 Rule 13 (the court has discretionary power if the applicant can satisfy one or more of the test requirements)
Test requirements:
1. The Claimant is a resident out of the jurisdiction (but not in a Brussels contracting state or bound by The Hague Convention)
2. The Claimant is a company or other body and there is reason to believe that it will be unable to pay the Defendant’s costs if ordered to do so;
3. The Claimant is acting as a nominal claimant and there is reason to believe that they will not be able to pay costs if ordered;
4. The Claimant changed their address since the claim was started with a view to evading the consequences of litigation;
5. The Claimant failed to provide an address or they have an incorrect address on the claim form;
6. The Claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against them.
Security for costs - potential orders
- For the Claimant to pay a sum into court or give some other form of security;
- For the Claimant to pay a sum to the Defendant’s solicitor.
- For the Claimant to undertake to pay the Defendant’s costs if ordered to do so.
Relief from sanctions
Can be brought on by Claimant or Defendant who has had their claim or defence struck out for non-compliance of a rule, practice direction, or a court order under Civil Procedural Rules Part 3 Rule 9 using the Denton Test
Denton Test
1. Was the breach serious or significant?
2. Was there a legitimate reason for the breach?
3. Are there any other circumstances that suggest relief should be allowed?
The Denton Test
This case law provides guidance on how the court should approach the test for relief from sanctions by providing a 3-stage approach.
- The court should consider the seriousness of the non-compliance (i.e., does the breach imperil future hearing dates?)
- The court should assess why the breach occurred and whether there was a good reason;
- The court should consider whether the application was made promptly and whether the sanction is proportionate.
Interim mandatory injunction
Can be brought on by the Claimant or Defendant under Civil Procedural Rules Part 25 and 25.1(1)(g)
This is a court order that requires a party to take specific action or do something temporarily, pending the outcome of the full case. It has a high threshold (requires a higher level of certainty that the order is necessary)
Test requirements (all conditions must be satisfied)
- The applicant is likely to succeed, or there must be a valid legal claim;
- The applicant must demonstrate that they will suffer irreparable harm if the injunction is not granted;
- The applicant must show that damages or other remedies would not be sufficient;
- Whether the harm caused by granting the injunction outweighs the harm that might be caused by refusing it.
Interim prohibitory injunction
Can be brought on by the Claimant or Defendant under Civil Procedural Rules Part 25 and 25.1 (the court has discretionary power to grant this order)
This is a court order that temporarily prevents a party from doing something while the case is ongoing. It is a common remedy used to stop an action that might cause harm or prejudice before the court makes a final decision.
Test requirements (the court will generally consider these factors)
- There must be a serious issue to be tried (that there is a valid legal issue that warrants judicial intervention)
- The applicant must demonstrate that, if the injunction is not granted, they will suffer harm that cannot be compensated by damages or any other remedies;
- The applicant must show that the harm cannot be adequately addressed by damages alone or any other remedies;
- The court must assess whether the harm caused by granting the injunction is outweighed by the harm that would occur if it was not granted;
5, The court must also consider whether the injunction will maintain the status quo, preventing any irreversible changes or actions until the case is concluded;
Freezing injunction (also known as a freezing order or a Mareva Injunction)
Can be brought on by the Claimant or Defendant under Civil Procedural Rules 25.1(1)(F)
Test requirements:
- The applicant must have a substantive cause of action that is justiciable in England and Wales. This means that there must be a valid legal claim that is serious and has reasonable prospects of success which is established under CPR 25.4(1)(a)
- The applicant must have a good and arguable case, that their case is not frivolous or vexatious (they should have roughly more than 50% chance of success in winning the claim)
- There must be a real risk of dissipation of assets to frustrate any potential judgment in favour of the applicant. The risk is based on various factors such as, (1) evidence of the respondent’s dishonesty (2) debt defaults, (3) transferring assets abroad, (4) the respondent living in a tax haven or jurisdictions where English enforcements are difficult or impossible)
- The assets must be within the jurisdiction of English courts or that there must be a credible possibility that assets in the jurisdiction can be frozen or preserved. The court is able to grant a freezing injunction for assets outside the jurisdiction but that usually requires an even more comprehensive application for international enforcement.
Interim payments
Can only be made by the Claimant under Civil Procedural Rules 25.6 to 25.9 (for which the court has discretionary power)
Test requirements under CPR 25.7
- The Defendant has filed an acknowledgement of service; and one of the following conditions.
- The Defendant has admitted liability in relation to damages or some other sum of money due to the Claimant;
- The Claimant has obtained judgement against the Defendant;
- If the claim went to trial that the Claimant would obtain judgement for a substantial amount of money other than costs against the Defendant
Specific disclosure
Can be brought by the Claimant or Defendant under Civil Procedural Rules Part 31 Rule 12
Test:
The Applicant must demonstrate that it is necessary for the Respondent to (1) disclose documents or classes of documents specified in the order, (2) carry out a search to the extent set out in the order, or (3) disclose any documents found.
Pre-action disclosure
Can be brought on by the Claimant or Defendant under Civil Procedural Rules Part 31 Rule 16
Test:
- The Applicant and Respondent are prospective parties to an anticipated claim;
- That had the proceedings began, the Respondent would have had a duty to disclose the documents or classes of documents under the test for standard disclosure;
- That this order is necessary to dispose of the anticipated proceedings fairly to aid settlement, or to otherwise save costs.
Unless order
Can be brought on by the Claimant or Defendant under Civil Procedural Rules 3.1(3) and CPR Part 23 (the court has a discretionary power)
Test:
- The Respondent is in breach of or has failed to comply with a court order or the overriding objective; or
- The court believes that it is likely that the Respondent is not acting in good faith.
Search order (Anton Piller Order)
Can only be brought on by the Claimant under Civil Procedural Rules Part 25.
The Claimant must meet all test requirements to obtain this order:
- There must be an extremely strong prima facie case or a strong evidence that the Defendant is involved in the wrongdoing;
- There must be a very serious actual or potential damage suffered or to be suffered by the Claimant;
- The documents or information cannot be obtained using any other methods;
- There must be clear evidence that there are incriminating documents or items in the possession of the Defendant;
- There must be a real possibility that the Defendant may destroy the document or item before an on-notice application can be made;
- The harm likely caused by the search must not be disproportionate to the legitimate object of the order;
- The Claimant must provide a full and frank disclosure of all material facts to the court (including facts that may undermine their case or show the potential harm to the Defendant from the search order)
Calling a witness to give evidence at trial
Can be brought by the Claimant or Defendant under Civil Procedural Rules Part 32 Rule 10 to allow them to call a specific witness to give oral evidence at trial where no witness statement or witness summary was served in relation to this specific witness within prescribed time limits.
Automatic sanction is that the witness would not be able to give oral order at court and so, this application is to apply for a relief from this sanction before they make an application to call a witness to give evidence at trial.
Following the case of Foster. Below are test requirements for the court to consider.
- Why the evidence was not submitted on time in which will help them assess whether the delay was due to genuine circumstances or that the party just simply failed to comply with the rules.
- Whether the late evidence is material and important to the case (i.e., is it essential to resolving a key issue in the case?)
- Whether the Applicant will suffer prejudice if an order is not made AND whether other parties will suffer prejudice if an order is made;
- Whether allowing the late evidence would help achieve the goals of the overriding objective which is to enable the just, efficient, and the cost-effective resolution of disputed issue.
Permission to appeal
This application is brought on by the losing party to a disputed case. There is no automatic right of appeal, therefore, permission must first be sought and granted before a party is able to appeal a court decision.
Test:
- The appeal has a real prospect of success or there is some other compelling reason why an appeal should be allowed;
And
- The previous judgement or order was wrong in fact or in law, or in the exercise of discretion, or that it was not just as a result of a serious procedural of other irregularity.
Track allocation hearing
Can be brought by a Claimant or Defendant and is at the discretion of the judge using the court’s case management powers.
Steps:
- Set out the facts of the case;
- Refer to the factors considered in track allocation (i.e., the value of the claim, whether the claim involves a protected party or personal injury, whether the claim is of complex subject matter or has evidential issues or a test case)
- Conclude with a track recommendation;
Directions
Can be brought on by the Claimant or Defendant. 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 action and reference how they will further the overriding objective to deal with cases justly and proportionately.
Adjournment or stay of proceedings
Can be brought on by the Claimant or Defendant. The judge has discretionary case management powers to manage cases so that they can further the overriding objective to deal with cases in a fair and just manner and at proportionate costs.
Steps:
- Explain why the adjournment or stay is necessary;
- Demonstrate why it is in the interest of the overriding objective to adjourn or stay the hearing;
- That the application was made promptly after the need for an adjournment or stay has arisen.
