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
what is counterclaim called
part 20 claim / part 20 claimant
nb can get default judgment against part 20 claimant
when may claim make order for interim payment
ANY conditions satisfied
- D admitted liability
- C has judgment against D for damages
- If Cl would win SUBSTANTIAL amount
(DONT NEED TO SHOW THAT CLIENT GOING TO WIN (!!!) , but that if did, would win a LOT)
what does court consider re interim payment applications
- con negligence
- any set-off or counterclaim
court must not interim payment of more than…
reasonable PROPORTION of likely amount final judgment
when referring to three-stage test, how to refer to diff stages
“In respect of the first TEST”
“As to the second TEST”
where to use promptness in application set aside (or not set aside) judgment
appears to be up to u but in example during third stage denton v white
(i.e. take into account following circumstances)
e.g.
Third, the Defendant failed to act promptly when she became aware of the default judgment.
Good way to shove overriding objective in
Conclusion before “unless I can assist further
e.g.
Judge, I submit that it serves the overriding objective of dealing with this case justly and at proportionate cost to let the default judgment stand.
(Unless I can assist further…xyz)
quote for conceding first ground denton v white
As to the first test, I concede that failing to serve a defence is a serious and significant breach of the Civil Procedure Rules.
3 possible interim app costs orders
- costs in case
- where both appear at fault for making application (as merits of the application are ambiguous)
- where conditional order made - loser pays for that application
(clear winer) - no order
- each bears own costs
- where neither at fault
when will u need to address judge on costs in summary judgment?
how will u work out costs?
If debt claim
Find:
- amount claimed in particulars (not interest)
- calculate interest from particulars
- say how many days up to and inc hearing that have passed since last day interest claimed
- say daily rate interest
- multiply daily rate by daily rate
e.g.
“Judge, if I can take you to the particulars of claim on page 6 of the bundle and the summary of the claim half way down that page. Judge, the amount claimed to date is the sum of £200,000 plus accrued interest of £16,569.86. I calculate that an additional 68 days interest is due at the daily rate of £65.75, totaling £4,471. I therefore ask that judgment is entered in the sum of £221,040.86.”
(so general amount and interest claimed on PoC and how much interest accrued since then / at what daily rate for how many days)
Who usually has last word in DR interim application?
What should they say?
Applicant
Deal with points made against them by respondent, ideally in same order they were put
If new point, face it and point any evi or docs that support. u
Say why court should make order you seek
When will there be no real prospect of claim/defence succeeding?
(summary judgment)
Claim/defence is
‘merely fanciful, imaginary, unreal or intrinsically unrealistic’
🎩🧚♀️😍😮💨
(would use 3rd emoji if unreal and 4th if intrinisically unrealistic)
use those expressions x
when should summary judgment application be dismissed?
apparently credible W says one thing and another apparently credible W says another and not conclusive evi either way
(doubt need to know above) but means stock phrases are:
credible, incredible
conclusive, inconclusive
plausible, implausible
Most likely interim payment ground to feature in exam, inc CPR numbers
25.7(1) Court MAY make order if satisfied
(c) if claim went to trial, would obtain judgment for SUBSTANTIAL amount (other than costs) from D who seeking order from, whether or not D is only D or one of a number of Ds
TWO PARTS TO THIS:
- would obtain judgment; AND
- for substantial amount
What does substantial sum mean in interim payment claim
does not mean a LARGE sum - but a figure that would be substantial to client in their personal circumstances
4 stages to interim payment application substantial amount
- Conditions
(i.e. set out which part of rule 25.7(1) it falls into) - Why would obtain substantial amount and why would be appropriate to grant
- Address on amount
- Supported by evidence
Quote for where persuading judge on C (after set out what must satisfy/the law)
Judge, I accept….
“Judge, I accept that the burden of proof at this hearing is a high one falling on the Claimant within the balance of probabilities to satisfy you that if the claim went to trial the claimant will obtain judgment for a substantial sum.”
2 things must persuade judge on re interim payment substantial amount
explain second aspect
- satisfy balance probs would obtain judgment substantial sum
- appropriate in principle to exercise discretion to make order
- Perhaps inappropriate if:
○ Too close to trial
○ Too small a sum to be worthwhile
○ In some other way delay or prejudice fair conduct of trial
- Perhaps inappropriate if:
What must you address court on re interim payment?
(a) the sum of money for which final judgment is likely to be given and
(b) the sum of money sought by way of an interim payment.
What can court order in terms of costs interim payment?
(4) No more reasonable proportion of likely amount final judgment.
(5) Take into account
(a) contributory negligence; and
(b) any relevant set-off or counterclaim.
If potential con neg or counterclaim, what must u do in app for interim payment?
Can you ask to ignore?
- Need to address court on con neg / counterclaim
- If ask court to ignore, present COGENT evi or point to LACK of cogent evi from D
how do you work out costs requested in interim app?
is there a set proportion?
- Work out what percentage of final judgment client is requesting
○ E.g. if interim payment sought of 70k, that is 70% of a final award of 100k - There is no set proportion - awards as high of 90% been made but usually less
Relevant factors in courts assessment of costs sought by interim payment app
○ Claimant’s changes of establishing entitlement to amount claimed
○ Likelihood D will be unable to recover from C any overpayment
○ Hardship that D likely suffer from making immediate payment or from being able to recover an overpayment
What should claimant’s witness statement re interim payment of damages address?
what additional stuff are required for:
- PI
- Fatal Accidents Act claims
PD 25B para 2.1
(2) items or matters in respect of which interim payment is sought,
(6) PI - details of special damages and past and future loss, and
(7) Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim is made and the nature of the claim.
Does claimant need to prove need for interim payment in application?
Client does not need to prove particular need for interim payment.
But in particular in PI cases, usually include why payment is required and on what it will be spent.
4 things must cover in interim application substantial sum
- WOULD obtain judgment
- SUBSTANTIAL amount
- why should exercise DISCRETION
- prejudice - Amount of interim payment sought is “reasonable proportion” of likely Judgment
Things to cover re why judge should exercise discretion to grant interim payment
PREJUDICE
- eg trial is ages away
PROMPTNESS in making application
What does D have to satisfy court in security for costs application?
On evi adduced, or lack of credible adduced by C, discharged burden that C unable to pay costs if ordered to do so;
JUST to make an order
what to cover in interim payment application
- Strength of claim
- Substantial damages which will be awarded
- Appropriate to exercise discretion
- Amount reasonable proportion of likely judgment sum.
Key phrases for strike out
inherent jursidiction
doomed to failure
Interim injunction structure
- Intro
- If without notice, why?
- urgency? defeat point?
- informal notice given? - Serious Q to be tested
- purpose
- why imp - Damages inadequate?
- “not translatable into money terms”
- goodwill? - Claimant’s undertaking
- would make good? financially capable? - Special factors
(only if anything not yet covered) - Conclusion
- summarise main points
