Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

SQE2 Oral Assessments > Disputes Advocacy > Flashcards

Disputes Advocacy Flashcards

1
Q

General points

What are the most likely applications?

A
  • Summary judgment
  • Set aside default judgment
  • Interim payment
  • Interim injunction
  • Relief from sanctions
  • Strike out
  • Security for costs
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

General Points

What should you fall back on if you forget the tests?

A

State that what you are seeking is in line with the overriding objective and the need to conduct proceedings efficiently and at proportionate cost

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

General points

What should you do at the beginning of your submissions if you are the party at fault?

A

Acknowledge the failure and apologise to the court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

General points

What is the general structure for civil litigation submissions?

A
  1. Introduce advocates, case, application and documents. Copy of bundle? Summary of facts?
  2. Accurately identify grounds for application under CPR
  3. Clearly identify factual and legal issues court is to decide. Discretionary? Burden of proof?
  4. Demonstrate w reference to documents where evidence in support of application is location
  5. Deal w opponent’s position but only to extent of acknowledging points and explaining why your position/interpretation is correct
  6. Draw persuasive conclusions at the end ofeach issue from significant facts and evidence, referencing grounds
  7. Make persuasive concluding submissions for order sought - leave judge w best 2-3 points
  8. End submissions
  9. Reply appropriately to any question raised
  10. Respond to decision and deal w costs appropriately
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

General Points

What is the correct language for making a submission?

A

It is the Applicant’s submission that…

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

General points

Which applications are discretionary/mandatory?

A

All are discretionary except for setting aside default judgment where wrongly entered

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Summary judgment

Under which part of the CPR is an application for summary judgment made?

A

CPR Part 24

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Summary judgment

What are the grounds for summary judgment?

A
  1. The claimant/defendant has no real prospect of successfully bringing/defending the claim, and
  2. There is no nother compelling reason to go to trial
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Summary judgment

What does the ‘compelling reason’ limb refer to?

A

Whether the judge has all the necessary information to make a decision on the merits of the underlying claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Summary judgment

What are common examples of compelling reasons to go to trial?

A
  1. Need to allow more time to investigate the matter e..g due to difficulty contacting an important witness
  2. Claim or defence is highly complicated and/or technical and can only be understood with full evidence that would be available at trial
  3. Need to hear from witnesses, particularly if one of the central issues is disputed oral evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Default judgment

When is setting aside default judgment mandatory?

A

Where it was wrongly entered e.g. the time limit for filing a defence/AOS had not yet expired

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Default judgment

What are the requirements for setting aside default judgment where it is not mandatory?

A

Applicant must show:
1. Real prospect of successfully defending the claim, or
2. Good reason why default judgment should be set aside and D allowed to continue to defend the claim

Should try where possible to establish both

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Default judgment

What should be addressed when providing a good reason for setting aside the judgment?

A

The Denton v White factors:
1. Seriousness of the breach
2. Reason for the breach
3. All other circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Interim payments

Under what part of the CPR is an interim payment applied for?

A

CPR Part 25

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Interim payments

When can an application for interim payment be made?

A

After the defendant has filed a defence/AOS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Interim payments

What are the grounds for applying for an interim payment?

A
  1. D had admitted liability
  2. C has already obtained judgment
  3. If the claim where to proceed, C would likely be awarded a substantial amount at trial
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Interim payments

What must an application for interim payment include?

A
  1. Explain what payment will be used for
  2. Request specific sum
  3. Show sum is reasonable proportion of likely damages
  4. Consider contributory negligence, counterclaims etc
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Interim payments

What can an interim payment be ordered on account of?

A

Any debt, damages or other sum D may have to pay

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Interim payments

What is considered when deciding to grant an order for interim payment?

A

Any counterclaims

20
Q

Interim payments

In what ways can an interim payment be ordered to be paid?

A
  1. Via lump sum
  2. Via instalments
21
Q

Interim injunctions

What must an application for an interim injunction show under the American Cyanamide guidelines?

A
  1. There is a serious question to be tried
  2. Damages would not be an adequate remedy
  3. The balance of convenience favours an injunction
  4. Whether there are any special factors

Always consider overriding objective

22
Q

Interim injunctions

What can the claimant offer to make the award of injunction more likely?

A

An undertaking in damages - C promises to compensate party subject to injunction if it turns out injunction shouldn’t have been granted

23
Q

Interim injunctions

When can an interim injunction be applied for without notice?

A

Where there are good reasons for doing so e.g. insufficient time or giving notice would allow D to harm C, for example by destroying evidence

24
Q

Interim injunctions

Which orders can be made without notice?

A
  1. Freezing order
  2. Search order
25
Q

Relief from sanctions

Under what part of the CPR are relief from sanctions applied for?

A

CPR Rule 3.9

26
Q

Relief from sanctions

What will the court consider in an application for relief from sanctions?

A

Denton v White factors:
1. Seriousness of breach, and if serious
2. Reason for breach
3. All circumstances to deal with case justly

Other factors:
4. The need for litigation to be conducted efficiently and at proportionate cost
5. The need to enforce compliance with rules, PDs and orders

27
Q

Relief from sanctions

What examples may fall under the ‘all other circumstances of the case’ limb of the Denton v White test?

A
  1. Whether the sanction imposed is proportionate to the breach
  2. How long after the breach the application for relief was made
  3. Whether other current or previous breaches have been committed
28
Q

Relief from sanctions

What should the party applying for relief provide evidence of?

A
  1. Seriousness/significance of relevant failure
  2. Why failure or default occurred
  3. Whether trial date could still be met
  4. Effect failure to comply and grant of relief would have on each party
29
Q

Relief from sanctions

When can a party be penalised for applying for the other party to be sanctioned?

A

If they have unreasonably sought to take advantage of a mistake by the opponent which concerned a minor or technical breach that had no effect on litigation

30
Q

Security for costs

Under which part of the CPR are applications for security for costs made?

A

CPR Part 25.13

31
Q

Security for costs

What are the grounds for security for costs, one of which must be satisfied?

A
  1. C is resident outside the Hague Convention
  2. C is a company and there is reasonable grounds to believe it would not be able to pay D’s costs if ordered
  3. C has changed address, failed to provide address or given wrong address w intention of evading consequences of litigation
  4. C has taken steps re their assets to make it difficult to enforce order for costs
  5. C is nominal claimant and there are reasonable grounds to suspect it would not be able to pay D’s costs if ordered
32
Q

Security for costs

What must an applicant for security for costs show?

A
  1. That one of the grounds in CPR Part 25.13 is made out, and
  2. The granting of security would be just
  3. Justification for the amount of security sought
33
Q

Security for costs

What will the count take into account when considering justness?

A
  1. Strength of C’s claim - the stronger it is, the less likely security for costs will be awarded
  2. C’s ability to provide security - if C’s claim is strong, court are reluctant to grant order C cannot comply with as this will stifle the claim
  3. Cases of impecuniosity - the extent to which D caused or contributed to this impecuniosity
  4. Property available within the jurisdiction to satisfy an order for costs
  5. Whether the application was made as soon as possible
34
Q

Strike out

Under what rule is an application to strike out made?

A

CPR Rule 3.4

35
Q

Strike out

What must an applicant for strike out show?

A
  1. Claim/defence discloses no reasonable grounds for bringing/defending the claim, or
  2. Claim/defence is an abuse of process
  3. Other failure to comply with court order or rule
36
Q

Strike out

What would prove no reasonable grounds for claim/defence?

A

If the claim/defence:
1. Does not set out any facts to indicate what it is about, or
2. Contains coherent facts but those facts do not disclose any legally recognisable claim or defence

37
Q

Unless orders

What must be demonstrated when applying for an unless order?

A

Applicant must show how:
1. Other party is in breach of order it complied with
2. It is in the interests of the overriding objective

38
Q

Track allocation

What is the structure for an application for track allocation?

A
  1. Set out the facts
  2. Apply the facts to the track allocation factors
  3. Conclude with a track request
39
Q

Track allocation

What are the characteristics of a small track case?

A

Vlaue under £10k or under £5k for PI claims for pain and suffering and loss of amenity

40
Q

Track allocation

What are the characteristics of a fast track case?

A
  1. Value between £10,000.01 and £25,000
  2. Trial will last no longer than 1 day
41
Q

Track allocation

What are the characteristics of an intermediate track case?

A
  1. Value between £25,000.01 and £100,000
  2. No more than 3 parties
  3. No more than 2 experts giving oral evidence
  4. Trial will last no longer than 3 days
42
Q

Track allocation

What are the characteristics of a multi-track case?

A

Value over £100,000

43
Q

Track allocation

What other factors may the court consider in an application for track allocation?

A
  1. Remedy sought
  2. Complexity of facts, law and evidence
  3. Number of parties
  4. Value of any counterclaim (larger of claim and counterclaim determines track)
  5. Amount of oral evidence
  6. Importance to non-parties
  7. Views and circumstances of parties
44
Q

Applications for adjournment

What must the application for a stay/adjournment show?

A
  1. That it was made promptly
  2. Why adjournment/stay is necessary
  3. Why it is in the interests of the overriding objective
45
Q

Final judgment

How should you respond to a post-judgment question on costs?

A

Look to instructions:
1. If costs agreed, state amount agreed
2. If you lose, acknowledge usual position on costs
3. If you win, request costs for the application be assessed in the usual way

SQE2 Oral Assessments (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions