DR tests Flashcards
Summary judgment
(a) No real prospect of success on the claim/issue/defence (i.e., position is more than fanciful, imaginary or false; and
(b) No other compelling reason why the case/issue should be disposed of at trial e.g.
-Complex issues and/or difficult questions of law –> can only be properly understood with all evidence that would be available at full trial
-D needs more time to investigate (e.g. difficulties in contacting important W)
-Need expert evidence or scrutinise key docs
-Need to hear from Ws, esp. if a central issue is disputed oral evidence
-Multi-party litigation
-D has right to trial by jury (e.g. fraud)
Discretionary (OO): deal with matter justly and at proportionate cost
Set aside default judgment
Test 1: mandatory ground (court MUST set aside judgment) - judgment was wrongly entered e.g.
-Time limit for acknowledging service or serving a defence had not expired when judgment was entered
-Summary judgment or strike out had been applied for before judgment was entered
-D had satisfied whole of claim before judgment was entered or admitted the claim or required time to pay
-D had not been served with CF/PoC
Test 2: discretionary ground (OO) - court may set aside judgment
(a) D has a real prospect (i.e., more than just arguable) of successfully defending the claim; OR
(b) Some other good reason why judgment should be set aside or varied or D should be allowed to defend e.g.
-C lulled D into believing a claim was not forthcoming
-C failed to serve response pack
-Claim raises issues which should be given a full and fair hearing in the public interest
-D was ill or away on holiday –> could not respond in time constraints
Further factors
1. Promptness of application: D must issue application as soon as they become aware of default judgment
2. Dentons: test for relief from sanctions
–i. Significance/seriousness of failure to comply
–ii. If breach is serious/significant: consider why default occurred
–iii. Evaluate all circumstances of case to ensure that the court deals with the matter justly, with particular weight to the need (a) for litigation to be conducted efficiently and at proportionate cost and (b) to enforce compliance with rules, PDs and orders
Strike out
3 grounds:
(a) SoC discloses no reasonable ground for bringing/defending the claim e.g.
-Lacks required facts
-Incoherent
(b) SoC is an abuse of court’s process or otherwise likely to obstruct the just disposal of proceedings
-Abuse of process: misuse of procedure (e.g. vexatious litigant)
-Obstruction of just disposal (e.g. obviously ill-founded claim)
(c) Failure to comply with rule/PD/court order e.g.
-Late service and exchange of docs
-Not attending court when ordered to do so
-Being unprepared for court hearings
Interim payment
Grounds (discretionary - OO)
(a) D has admitted liability (to pay damages or some other sum of money); or
(b) C has obtained judgment (against D for damages or some other sum of money to be assessed); or
(c) Court is satisfied that C would obtain substantial judgment at trial against D (regardless of whether there are other Ds) (high burden - must prove, on BOP, that they will succeed)
Or some other ground exist
Amount: not more than a reasonable proportion of the likely amount of the final judgment
-Take into account any CN, set-off or counterclaim
Interim injunction
American Cyanamid Guidelines (discretionary - OO; equitable factors; just and convenient)
- Serious question to be tried: A must have pre-existing cause of action - not ‘frivolous or vexatious’
- Damages are not an adequate remedy for A (examples of inadequate: R has no means of paying damages; harm being done is irreparable, unquantified or serious and likely to continue)
- Damages are an adequate remedy for R: R could be adequately compensated by A if, at trial, transpires that injunction was wrongly granted (‘cross undertaking’)
- Balance of convenience:
-Equitable remedy: serves practical purpose, clean hands, delay
-Discretionary remedy: no automatic right even if ‘guidelines’ are met
Search order
Court is satisfied that:
(a) A appears to have a strong case;
(b) A will suffer serious harm if the order is not made; and
(c) R has incriminating materials in their possession which cannot be obtained by other means
+ Harm likely to be caused to R by the execution of a search order is not excessive or out of proportion
Freezing order
Court is satisfied that:
(a) A has a good arguable claim (i.e., more than barely capable of serious argument, even if not >50%)
(b) Real risk that R will dispose of their assets so as to defeat the enforcement of an eventual judgment
+Backdrop of overarching ‘just and convenient’
Disclosure
(a) Doc: anything in which info of any description is recorded
-e.g. written docs, audiotapes, videotapes, photos, e-docs
(b) Is/was it in party’s control?
-Is/was in physical possession
-Have right to possess
-Have right to inspect
Standard disclosure
Disclosure requirements + any of
- Relies on it
- Adversely affects its own case
- Adversely affects another party’s case
- Supports another party’s case
- Required by PD
Specific disclosure
Take into account all circumstances of case, esp. OO: disclosure appears inadequate
Pre-action disclosure
OO+
(a) R is likely to be a party to subsequent proceedings
(b) A is also likely to be part of those proceedings
(c) If proceedings had started, R’s duty by way of standard disclosure would extend to (classes of) docs which A seeks
(d) Pre-action disclosure is desirable to:
i. Dispose fairly of anticipated proceedings;
ii. Assist the dispute to be resolved without proceedings; or
iii. Save costs
Non-party disclosure
OO+
(a) Docs are likely to support A’s case or adversely affect case of other party(ies) to proceedings; and
(b) Disclosure is necessary to:
i. Dispose fairly of the claim; or
ii. Save costs
Norwich Pharmacal order (i.e., pre-action, non-party disclosure)
OO+
(a) An ultimate wrongdoer has (arguably) carried out a wrong
-e.g. tort, breach of contract or crime
(b) An order is needed to enable action to be brought against ultimate wrongdoer
(c) Person against whom the order sought
i. Is more than a mere witness/bystander (although not necessarily at fault); and
ii. Is (likely to be) able to provide info necessary to enable ultimate wrongdoer to be sued
Right to inspect a document
Party has right to inspect a doc, except where:
(a) No longer in disclosing party’s control
(b) Allowing inspection would be disproportionate (according to disclosing party)
-Note: cannot refuse inspection where reason for disclosure is that a party wishes to rely on the doc or a PD requires disclosure
(c) Doc is privilege: disclosing party has right/duty to withhold inspection
1. Legal advice privilege
2. Litigation privilege
3. Without prejudice communications
Legal advice privilege
- Confidential communication between lawyer and client;
e.g.
-Solicitor’s note of conversation with client concerning legal advice
-Repetition of legal advice internally
-Solicitor’s memorandum and notes, if prepared in relation to confidential work for client for legal advice
-‘Continuum of communication’: wider communications between solicitor and client where solicitor is retained primarily to provide legal advice
-Communications with in-house lawyers, if concerns advice given in a legal capacity rather than generic commercial/executive capacity with no legal context
-Instructions to counsel and counsel’s advice - Prepared for dominant purpose of giving/receiving legal advice
BOP: on party claiming privilege
Litigation privilege
- Confidential communication between 2 of lawyer/client/3rd party
- Prepared for dominant purpose of obtaining legal advice, evidence of info for use in conduct of litigation
-Extends to docs brought into existence for purpose of prosecuting/defending the claim, even if they are not (strictly) communications between a solicitor/client/3rd party (e.g. draft SoC) - Litigation was at the time reasonably in prospect (i.e., a real likelihood, and not just a mere possibility)
BOP: on party claiming privilege
Examples:
-Report from an expert obtained by a solicitor in order to advise their client on existing/contemplated proceedings
-Witness statements obtained by a legal executive for the purpose of using as evidence
Without privilege communications
A doc whose purpose is a genuine attempt to settle a dispute
-Substance, not form
BOP: on party claiming privilege
Duty to make a reasonable and proportionate search
OO (esp. proportionality) +
-Number of docs involved
-Nature and complexity of proceedings
-Difficulty/expense of retrieving docs
-Significance of any doc likely to be found
Continuing duty of disclosure
- Any duty of disclosure continues until the proceedings are concluded
- If docs to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party
Use of expert evidence
Court will restrict expert evidence to that which is reasonably required to resolved proceedings
-Court should refuse permission if issues are factual and do not require expert evidence
-Court is more likely to restrict expert evidence in small claims and fast tracks
-Court ultimately decides who is an expert: should be suitably qualified/experienced
-Factors:
–Value of claim and proportionality
–Likely costs
Appropriateness of SJE
Court will consider a number of factors, including:
(a) Is it proportionate to have separate experts for each party on a particular issue?
(b) Is instructing an SJE likely to assist in resolving the issue more speedily and in a more cost-effective way?
(c) Is there likely to be a range of expert opinion?
Note: fast track - usual order is for SJE to be appointed unless there is good reason not to do so
Costs management order (CMO)
Court will make CMO unless it is satisfied that the litigation can be conducted justly and at proportionate cost (OO) without one
Costs argument (end of IA)
- Interim inter-partes cost order: seek appropriate costs order
- OO
Final inter-partes cost order
Persuade judge to (not) exercise discretion to depart from general rule (costs follow the event)
-Parties’ conduct (before and during proceedings)
–Whether it was reasonable to raise, pursue or contest a particular issue
–Manner in which a party has pursued/defended its case
–Whether a successful C exaggerated its claim
–Whether a party failed to comply with an order for ADR, or unreasonably failed to engage in ADR
-Whether a party has succeeded on only some issues / part of claim
-Any admissible offer to settle made by a party (which is not Part 36)
Possible interim inter-partes cost orders
-Costs in any event in favour of C/D (usual rule): party in whose favour this order is made is awarded its costs of interim hearing from the other party regardless of who eventually wins at trial
-Costs in the case: party who eventually gets its costs at trial (winner) will recover its costs of the interim hearing from the other party
Security for costs
Discretionary (OO):
- Prescribed condition; and
e.g.
-C resides outside 2005 Hague Convention State
-C is an impecunious company: reason to believe company will (not may) be unable to pay D’s costs if ordered
-C moving assets away
-C changed address since claim commenced to evade litigation
-C did not give address in CF - Just to make the order in all the circumstances
-Factors:
(a) Strength of claim and defence: D is less likely to win at trial –> less justified in seeking security
(b) C’s ability to provide security: where C has a reasonable prospect of success, courts will be reluctant to make an order for security with which they cannot comply as the effect will be to stifle the claim
(c) Causes of C’s impecuniosity: C’s finances are caused/contributed by D’s behaviour?
(d) Property within jurisdiction: where application is made against a C who is resident outside the EU, court is unlikely to grant security if they have sufficient assets within the jurisdiction that would be available to meet D’s costs
(e) Timing of application: order should be applied for as soon as practicable
-Application less likely to succeed
–D admits liability or makes substantial open offers
–D responsible for C’s financial difficulties
–D uses application oppressively
-Application more likely to succeed: C’s claim is a sham
