DR Advocacy Flashcards
What is legal requirements for prohibitory injunction?
American Cynamide case:
- Serious question to be tried
- Damages not adequate
- Balance of convenience - keep status quo
Civil court modes of address?
Magistrates: sir/ madam
District: judge
High court: My Lord/Lady
Circuit (crown or county or HC): Your honour
Sit or stand in civil?
Sit
What is the legal test for summary judgement?
1) No reasonable prospect of success
2) no other compelling reason for a trial
Brief structure of civil advocacy?
- Introduce self, opponent, application and docs relying on
- Check Judge has bundle?
- Ask judge whether wants summary of facts?
- Briefly identify issues - legal and factual
- Arguments
- Conclude
What section of Consumer Rights Act 2015 is reasonable care and skill?
S49
What part of CPR is default judgement?
PART 12
Legal requirements for default judgement?
- Particulars served on D
- D not filed an acknowledgment of service or defence in relevant time (14 days acknowledgment of service and then 28 defence)
What is required in default judgment regarding costs?
If it is for a sum of money must
1. Indicate date payment due
2. Calculate up to date total
3. State daily rate of interest
(Once judgment payment required within 14 days)
What Act carries entitlement to statutory interest?
County Courts Act 1984, s69
What part of CPR is setting aside default judgment
Part 13
What are the mandatory and discretionary grounds for setting aside default judgment?
Mandatory: if wrongly entered, eg before time
Discretionary: 1. Real prospect of defending claim 2. Good reason to be allowed to defend claim
What form to fill in to set aside default judgement?
N244 + fee
What are grounds to seek relief from sanctions?
- Consider litigation efficient and enforce compliance
- Apply promptly with support
- Denton v White:
Court should a) identify seriousness of failure
B) consider why it occured
C) evaluate all circumstances and consider justice and impact
Denton v White rule fora relief from sanctions?
Denton v White:
Court should a) identify seriousness of failure
B) consider why it occured
C) evaluate all circumstances and consider justice and impact
Argents made for summary judgement?
- Real prospect of success
- Good reason to set aside
- Denton v white
Requirements for interim payment?
CPR 25.7
- Satisfied if went to trial would receive significant sum, other than costs
- Must not give more than reasonable amount of final judgement
- Consider contributory negligence
What part of CPR for interim payment on account of costs?
CPR 25
What does CPR 44.2(8) say?
Where court orders party to pay costs subject to detailed assessment will order to pay reasonable sum on account of costs unless good reason not to
Requirements for security for costs?
CPR 25.13(1)
- Is satisfied, having regard to all circumstances it is just to make order
And
A. Not part of Hague convention
B. C is company and reason to believe cannot pay D costs
C. C taken steps to make enforcement difficult
What part of CPR is interim payment?
Part 25
Requirements for interim payment?
- D has admitted liability
- C has obtained judgement for damages and is awaiting assessment of sum
- C would obtain judgement for substantial sum
What is limitation act
Limitation Act 1980
What part of CPR regarding amending statement of case
CPR Part 17
When can you amend statement of case?
Before limitation: a. Consent of all parties/ b. Permission of court
After limitation: a. Add/substitute a new claim if substantially same claim
B. Genuine mistake
C. Alter capacity
What CPR is request for further info?
CPR 18
How to request further info?
Written- state part 18 request
Reasonable and proportionate
Date for response
When can court strike out statement of case?
Discretionary:
- No reasonable ground to bring
- Failure to comply with rule/ direction of court
“What is just order, having regard to all the circumstances?” - would it be disproportionate?
Who holds burden of proof for summary judgement?
Applicant - show defence is “fanciful, unrealistic” (Sinclair v Chief Constable of West Yorkshire)
In Interim application if amount not stated how much ask for?
Approx 70%
After interim application, costs will be summarily assessed so judge may invite you to make a submission on costs order. What 3 possible options
?
- One party pay - clear winner
- Costs in case - neither pay, wait until end of litigation
- No order (bear own costs)
What CPR for specific disclosure?
CPR 31
Legal test for requirements for specific disclosure?
And practice direction court will consider
Court discretion:
1. Specify terms of order sought
2. Supported by evidence
Court consider docs necessary for just disposal and relevance of docs
Practice direction:
PD31A - court consider all circumstances and overriding objective
What is required in standard disclosure?
- Docs rely on
- Docs adversely effect own and other party’s
- Docs supporting other party
What is part 18 request and when can it be rejected?
1.request for further info
2. Can be rejected if ‘not relevant’, no evidence, disproportionate
Track allocation?
- Small claims up to £10k and no complex issues of fact
- Fast -10k-25k
- 25k+
Part of CPR for fixed costs
Part 45
CPR fir security of costs?
25
Methods of enforcing money judgement
- Writ/ warrant
- 3rd party debt order
- Earnings against judgement debtor salary
- Charging order
What is qualified one way cost shifting?
PI claims - if bona fide, then losing claimant doesnt bear Ds costs
What are the 4 parts of standard disclosure (N265)
- Docs not objecting to inspect
- Has but objects to having
- No longer has
- Disclosure statement
What information to include in standard disclosure
- Location
- Date of source
- 3rd parties who have copies
- Docs searched for
- Date ranges
What is part 36 offer?
Formal proposal to settle
What is usual time period for part 36?
21 days
What are 2 reasons can exclude expert evidence?
- Privilege
- Confidential
What is a nuisance
Unlawful interference with Cs use and enjoyment of land
Test for an interim injunction
American cyanamide tedt
1) serious question to be tried
2) Damages adequate?
3) balance of convenience / status quo
What is Rylands v Fletcher tort
D brings onto land something likely to do mischief
A) if it escapes
B) non natural use of land
C) damage is reasonably foreseeable
What is timeframe for acknowledging service / defence?
14 days or if acknowledge then additional 14 to serve defence
What is a part 20 claim
Bring in a third party - done at time of filing defence
What is wording for circulating written resolution
Pursuant to chapter 2 part 13 of the Companies Act 2006 the directors of the company resolve to pass as a special/ Ordinary resolution
