DR Advocacy Tests

Question 1

What is an application for a ‘summary judgement?’

Answer 1

A summary judgement is form of interim application whereby the applicant asks the court to enter a judgement before the matter has gone to trial.

Question 2

What is the test the court will apply when deciding whether to grant summary judgement?

Answer 2

The court’s power is discretionary. The court will consider whether the applicant has demonstrated:

1. That the other party has no real prospect of successfully brining/defending the claim; and
2. There is no other compelling reason why the matter should be disposed of in court

Question 3

What is a default judgement?

Answer 3

A default judgement is entered against a defendant if they fail to file their defence in the permitted time constraints. It prevents them from filing a defence which they can rely on

Question 4

What is the test the court will apply when deciding whether to set aside default judgement?

Answer 4

The court must set aside a default judgement if it was entered before the time period for the defendant to file their defence had expired, or if an application for summary judgement/ more time to pay was pending or if the matter had already been settled.

The court has discretion to decide whether or not to grant a default judgement. They may grant if the applicant can show:

1. The defendant has a real prospect of successfully defending the claim; OR
2. There is another compelling reason why the judgement should be set aside/ the defendant should be allowed to defend the claim.

The court must also consider whether the application to set aside the default judgement was made promptly.

Question 5

What is application for security of costs?

Answer 5

An interim application the defendant can make if they are concerned the claimant may not have the funds to pay their costs in the event that the claimant loses.

Court can require the claimant to pay in a bond/ security into court

Question 6

What is the test the court applies when deciding whether to grant a security for costs order?

Answer 6

The court has discretion whether or not to grant a security of costs order.

May grant if the applicant proves one or more of these grounds:

1. The claimant is a company
2. . The claimant is not resident in the jurisdiction;
3. There are reasonable grounds for believing that the claimant would be unable to pay the defendant’s costs if they lost;
4. The claimant is a nominal claimant and there are reasonable grounds for believing that the claimant would be unable to pay the defendant’s costs if they lost the litigation;
5. The claimant has changed their address since the litigation began in an attempt to avoid the consequences of litigation;
6. The claimant gave a false or inaccurate address;
7. The claimant has dealt with their assets in such a way that enforcing an order against them would be difficult

Question 7

What is a prohibitory interim injunction?

Answer 7

A form of interim order whereby the applicant asks the court to enforce an injunction which prevents another party from doing something. Enforceable in contempt of court proceedings.

Question 8

What is the test the court will consider when deciding whether to order a prohibitory interim injunction?

Answer 8

This is a discretionary order. The court may enforce it if the applicant can prove:

1. There is a serious question to be tried; and
2. That damages would not be an adequate remedy for loss suffered; and
3. The balance of convenience falls in favour of an interim injunction

Court may consider whether applicant would be willing to give a cross undertaking in damages in the event that the court decides the injunction was wrongly ordered.

Question 9

What is a variation of directions?

Answer 9

The court has the authority to vary the directions imposed under the CPR if it is in line with the overriding objective.

Question 10

What will the court consider when deciding whether to vary its directions?

Answer 10

The applicant must first refer to the directions under the CPR it is seeking to vary. If it is seeking to vary the disclosure requirements, for example, should refer to CPR 31 and if seeking to vary expert requirements CPR 35.

Should then state how variation will allow court to deal with claim in line with the CPR overriding objective- to deal with cases fairly, proportionately, and at a reasonable cost.

Question 11

What is an unless order?

Answer 11

An unless order is a form of interim application.

Served on a party who has breached court order stating sanctions to be imposed unless they comply with certain requirements.

Question 12

What will the court consider when deciding whether to enforce an unless order?

Answer 12

The court has discretion whether to enforce an unless order. The applicant must show that:

1. The other side has breached a court order; and
2. They have complied with the court order; and
3. Enforcing the unless order is in line with the CPR overriding objective to ensure compliance will court orders/ deal with matters fairly, proportionately and at a reasonable cost

Question 13

What is an application to strike out?

Answer 13

A form of interim application to strike out (cancel) the claim.

Question 14

What must the court consider when deciding whether to strike out a claim?

Answer 14

The court has discretion whether or not to strike out a claim. May strike out a claim if an applicant can prove:

1. That the statement of case discloses no reasonable ground for defending/ bringing the claim; or
2. The claim or defence is an abuse of court process; or
3. There has been a breach of procedural rules, failure to pay court costs or court order

Question 15

When would the court impose sanctions?

Answer 15

Sanctions may include a claim being struck out if a party has failed to comply with a court order/ rule/ practice direction/sanctions for non-payment of court fees

Question 16

What will the court consider when deciding whether to grant a party relief from sanctions?

Answer 16

Case law provides a three stage approach which the court should follow:

1. How serious is the non-compliance? If not serious, discretion should be exercised and should not move to stage 2/3
2. Why has the non-compliance occurred? Was there a good reason?
3. Consider all circumstances to deal with the matter proportionately, efficiently, and to enforce compliance. Was application made promptly? Previous breaches? Proportionate sanction?

Question 17

What must the court consider when deciding whether to adjourn/ stay proceedings?

Answer 17

The Judge has discretionary case management powers to manage cases so they further the overriding objective - to deal with cases fairly, justly, and at proportionate costs.

1. Explain why adjournment/ stay is necessary;
2. Explain how is assists the overriding objective;
3. Show that application was made promptly after realising adjournment/ stay was necessary

Question 18

What must the court consider when deciding whether to allow a track allocation hearing?

Answer 18

Track allocation is at the discretion of the judge using the court’s case management powers.

1. Outline the facts;
2. Outline the parts of the case relevant to track allocation:
   - complex matters of law?
   - value?
   - personal injury?
   - length?
   - public importance?
   - protected party?
3. Conclude with track recommendation

Question 19

What must the court consider when deciding whether to order an interim payment?

Answer 19

Discretion of the judge to make an interim payment. The judge will consider whether the applicant has proven that:

1. The defendant has filed an acknowledgement of service; and either
   i. The defendant has admitted liability; or
   ii. A judgement has already been made in favour of the claimant; or
   iii. The court is satisfied that if the matter went to trial, a judgement would be made in the claimant’s favour for a substantial sum.

If there are multiple defendants, then:

2. The court is satisfied that a judgement would be made against at least one of the defendant’s for a substantial sum (although which defendant is unknown); and all defendants are either;
   i. Insured
   ii. liability met by an insurer under the Motor Insurer’s Bureau Agreement; or
   iii. the defendant is a public body
3. Explain what interim payment will be used for
4. Request a specific sum/ instalment plan
5. Demonstrate that the sum requested is a reasonable proportion of the likely damages
6. Address the court, if appropriate, on contrib neg/counter claim

Question 20

What is the process for applying for a freezing order?

Answer 20

Applicant must prove:

1. That they have a justificable cause of action;
2. That they have a good and arguable case;
3. That there is evidence that the other party has assets in the jurisdiction; and
4. That there is reason to believe that the enjoined party will dispose of or dissapate the assets before a judgement can be enforced against them

Question 21

What is the process for applying for a search order?

Answer 21

1. Applicant must have a strong prima facie case on the merits of the case;
2. The reason for applying must be because there is reason to believe that the enjoined party will destroy/fail to disclose documents/property
3. There must be evidence that the assets are in the enjoined party’s control

Question 22

How should you address a circuit judge in the county court/high court?

Answer 22

Your Honour

Question 23

How should you address a judge in the high court?

Answer 23

My lord/lady

Question 24

How should you address a master of the high court?

Answer 24

Judge

Question 25

How should you address a district judge of the county court?

Answer 25

Judge

Question 26

What type of judge is Hill J?

Answer 26

Judge of the High Court, referred to as My Lord/Lady

Question 27

What type of judge is Master Hill?

Answer 27

High Court Master, referred to as Judge

Question 28

What type of judge is HHJ Hill?

Answer 28

Circuit judge of the CC/HC, referred to as Your Honour

Question 29

What type of judge is DJ Hill?

Answer 29

District judge, county court, referred to as Judge

Question 30

What is the test for pre-action disclosure or documents?

Answer 30

Discretonary power:

1. Applicant / respondent likely to become parties to proceedings; and
2. If proceedings started, the respondent’s duty by way of standard disclosure would extend to the document or classes of documents which the applicant seeks disclosed; and
3. Pre-action disclosure is necessary to assist: (a) resolving the dispute w/out proceedings (b) to save costs (c) dispose of the proceedings fairly

Question 31

What is the test in R v Hanson for admitting bad character evidence under grounds that it relates to a matter in issue between prosecution and defence (discretion)

Answer 31

1. Do the past convictions indicate a propensity to commit the offence?
2. Does that propensity make it more likely the defendant committed this offence?
3. Would admitting the evidence have an adverse effect on the fairness of proceedings? S78 PACE

Question 32

What is the CPR overriding objective?

Answer 32

Deal with cases justly, proportionately (to value of case), expeditiously, at reasonable cost, and to ensure compliance with court orders