DR Flashcards
test for summary judgment
- no real prospect succeeding on claim/defence/issue; AND
- no COMPELLING reason why case/issue should be disposed of at trial
mandatory vs discretionary grounds for setting aside summary judgment
mandatory
- wrongly entered
discretionary
- D has some real prospect of success; OR
- Some other GOOD reason should allow to continue
e.g. ill/abroad - not too busy at work
Real prospect means
(summary judgment)
merely fanciful, imaginary, unreal or intrinsically unrealistic
Seeking to set aside summary judgment - example wording
Sir, the claimant argues that the application to set aside the judgment in default was not made promptly and that, in those circumstances, the court should not exercise its discretion to set aside the judgment.
However, as is clear from the defendant’s witness statement, the default judgment did not reach her until (day 2) which was a Saturday. The defendant contacted her solicitor on the Monday (day 4) but due to her work commitments was unable to meet with her until Wednesday (day 6). The defendant’s application was made the following day (day 7). The application was therefore made within 4 working days of the defendant receiving the judgment in default. In the circumstances, the application to set aside judgment in default was made promptly.
How to address judges in civil courts?
Masters of High Court (found at RCJ only) and DISTRICT Judges of High Court and County Court: Judge
County Court Circuit Judge: Your Honour
(usually stand if CCCJ and sit if RCJ Master/DJ of HC or CC - but SRA has indicated that candidates will sit when completing their DR assessment.)
What topics court likely to consider in CMC?
- whether Claimant has made clear the claim he bringing and amount
- any amendments required to statement of case or other document?
- what disclosure, if any, should be ordered?
- what expert evidence is reasonably required and how/when should obtain?
- what factual evidence should be disclosed?
- arrangements for giving clarification or further information, and putting Qs to experts
- just / save costs to order split trial or trial of one or more preliminary issues?
(split trial if deal with quantum and liability separately)
Structure interim application applicant (brief)
- Introduction
- self, opposing advocate and type of application
- check received the docs
- check if familiar with facts - Identify issues for judge to decide
- state them then discuss documents
- deal with anything opponent may raise (given their docs) - Refer to the relevant law/procedure
- Conclude
- summarise points/emphasise best
- If think may not grant, suggest second choice order
- “unless assist further”
Introduction applicant for interim app
○ Good morning, Judge, my name is Ms McKevitt and I am from ULaw LLP.
I represent the claimant, D Mills. Miss G, from Evans and Co, represents the defendant, C Mark.
The claimant’s application today is for summary judgment in a debt claim arising out of …
(check received docs)
(check familiar w case)
quote start application (applicant) to see if judge familiar with case
“Judge, before I begin, may I check if you are familiar with the facts of the case or whether a brief summary would assist?”
closing application as applicant
“Judge, unless I can help you further, that concludes my application”
quote applicant re summary judgment after made points/tying back together
Judge, you have the discretion under CPR 24.2(a) and (b) to enter summary judgment for the claimant. The defendant has no real prospect of successfully defending the claim at trial and there is no other compelling reason why this claim should go to trial.
The claimant has discharged his burden of proof.
quote ask judge to repeat something or ask respectfully for clarification on a point
“Judge, please could I ask you to repeat that point?” (own idea)
What are ancillary matters
costs (and sometimes interest, if not already addressed).
what is judgment sum consist o
sum claimed plus interest to date of judgment, ie date of hearing
calculate in advance
(covered in unit 4)
quote for referring judge to document
“If I may ask you look at document 1 which is a graph of the viewing figures…”)
denton v white
setting aside judgment
Stage 1: significance or seriousness of breach (of CPRs)
(if minor, usually grant)
IMPORTANT: if application to set aside default judgment, CPR deadline not met - so need to concede
Stage 2: Reason for failure
□ If default app to set aside, ‘any good reason’ should be put forward and any other that allows court understand why
§ Stage 3: Overall circumstances
□ Justness / prop cost
□ Inc:
§ Could trial date still be met?
Prejudice suffered by party if judgment is not or is set aside?
test set aside default judgment
and should both always be argued?
- real prospect successfully defending
- SOGR
RP should always be argued and SOGR only where it is made out on the facts.
eg forgot to respond not sufficient
it is a reason but not a good one.
However, that the defendant was on holiday when the particulars of claim were served and default judgment entered, would constitute a ground (b) good reason.
also remember should cover D v White
also remember dealing justly/prop cost
Good phrase if your client argued something then other side said not seen it/not provided
A detailed breakdown of how the £30,000 figure is calculated can be provided in due course.
Signposting judge towards document quote
Judge, I shall now take you to the witness statement of Mr Marks. Clear signposting
Example good reasons for setting aside default
§ Counterclaim
§ Cross-examine someone
§ Need to understand it
