DR Tests only Flashcards
Grounds for appeal
(1) Wrong in fact, law, or courts discretion
(2) Unjust due to a serious procedural or other regularity.
Personal injury, when can a Claimant be required to pay the Defendant’s costs?
- Claim was fundamentally dishonest
- Claimant lost a Part 36 offer
- Claim was struck out for no cause of action/abuse.
Time of limitation period stops running when
the claimant delivers the properly completed claim form, fee, and request to issue proceedings to the court.
When do ‘clear days’ have to be used?
In any practice direction, judgement, or order of the court.
It means the period it begins isn’t counted, and, if it’s an event, the day on which that event happens doesn’t count either.
So service of notice that is required on Friday 20 with 3 clear days.
We wouldn’t count Monday. 3 days = Tues Wed Thur. Friday we wouldn’t count because it’s an event. so technically 5 days.
Court giving a date for the hearing must be 28 days before hearing.
So don’t count day of hearing, and dont count day of event. So tehcnically 30 days. so 1oct - 30 oct.
if its 5 days or less then weekends and banks hols don’t count
When is it justifiable to issue proceedings without following the relevant protocol?
- Limitation period almost over
- Court order required to preserve evidence/assets
- Concern that D may start proceedings abroad.
Application for disclosure of documents PRE ACTION
- If they would be disclosed under standard disclosure AND
- If they are necessary in order to dispose of the claim without litigation.
(can also seek this disclosure from a non-party!)
What is the earliest a claimant can make an application for either (1) summary judgement or (2) interim payment?
As soon as the defendant files an acknowledgement of service / defence / admission whichever they send through in the defence bundle to the initial statements of case.
Test for summary judgement?
D has no realistic defence to the action AND
There is no other substantial reason to continue.
When might a defendent be subject to a default judgement?
If they fail to file a defence within the time limits
What is a default judgement
The case will be decided using only the statements of case from the Claimant, the Defendant cannot defend themself.
How can a Defendant argue against a default judgement?
(1) Show that you
- Acted promptly
- Have a real prospect of successful defence
- Some other good reason why the judgement should be set-aside.
(2) The court MUST set it aside if
- the claim was already settled out of court so D didn’t bother responding
- D’s application to ‘strike out’, for ‘summary judgement’ or for ‘time to pay’ was pending
- Judgement was made before the expiry of time (by accident)
Part 20 Counterclaim requirements
(1) Brought within the same set of proceedings
(2) Brought by an existing defendant
(3) Monetary claim in its own right
When does the defendant need permission to file a Part 20 counterclaim to an existing party
If it’s after they have filed their defence.
If they file it at the same time they don’t need any permission.
Part20 counter-claim against a third party
Monetary claim
Same facts
Third person
Can only be done by order of the court
Under a part 20 claim, any party can make a request for further information. What are the grounds for objecting to give this information?
- Unnecessary, improper, irrelevant
- Responding party unable to provide that info
- Insufficient time to reply
- Disproportionate expense/time to obtain ans.
- Privileged info e.g. legal advice…
When can a court substitute a new party for an old one?
- Interest/liability has shifted to the new party
- It is desirable to substitute to resolve the dispute
Sanctions for non-compliance with the court
(1) Striking out (usually only if failed an ‘unless order’)
(2) Costs/sanctions
(3) Defaulting party to pay the court
(4) Disallow some evidence of the defaulting party
A party can apply for relief from sanctions.
Examples of interim applications
- unless order
- set-aside a default judgement
- summary judgement
- strike out a claim
- interim payment
- interim injunction
- freezing injunction
- search order
test for summary judgement
- No real prospect of success
- No compelling reason why the case should proceed to trial
test for striking out a claim in the statement of case
- statement discloses no reasonable ground for making/defending the claim
- SoC is an abuse of the courts process
- failure to comply with a rule, practice direction, or order
test for interim payment
- not unjust
- D admitted liability
- judgement has been obtained but the sum is yet to be assessed (usually split trial in complex cases)
- court is satisfied that the claimant will obtain a substantial sum following judgement
other factors
- dont need to show financial need
- reasonable proportion can be awarded
- contributory negligence should be considered
test for interim injunction (mandatory/prohibitory)
- not sure
test to discharge an interim injunction
(1) Applicant failed to prove all relevant information (material non-disclosure)
(2) Applicant failed to comply with the terms of the injunction
(3) The facts do not support the injunction
(4) The injunction is oppressive
(5) There has been a material change in circumstance since it was granted OR
(6) The claimant failed to prosecute the claim with due speed after obtaining the injunction
Test for freezing injunction
(1) There is a justifiable cause of action
(2) The claimant has a good arguable case
(3) D has assets within the jurisdiction, AND
(4) There is a real risk that D may dispose of those assets before judgement can be enforced
(High court only
Test for Search Order
Used to prevent D destroying evidence.
Grounds
- Strong prima facie case on the merits of the case
- Strong reasons for believing the party might hide/destroy the evidence, AND
- Clear evidence that the property/docs are in the parties possession
In what circumstances is there not an automatic right to disclosure
- Privilege
- Doc no longer in party’s control
- It would be disproportionate to allow inspection
- Redacted for irrelevant and confidential information
Interim application for specific disclosure request should contain:
Description of the documents sought and why
Why it is reasonable and proportionate for them to be disclosed
The grounds for believing they exist
AND
The safeguards provided e.g. protect trade secrets
Plus evidence of these points
Types of privilege for disclosure
Legal advice
Litigation
Common interest
Without prejudice
Public interest immunity
Basis for expert evidence
Formal degree or experience
Not within the experience of the judge
Reasonably certain
Demonstrate the basis of their opinion
What do you call the judges in written correspondance?
Judge (district)
Judge (circuit)
Master (master)
Judge (county court)
Lord Justice (high)
Grounds for appeal of judgement
- Decision is wrong in fact, law, or exercise of discretion
AND/OR - Decision is unjust because of serious procedural or other irregularity
Whats the difference between standard basis ad indemnity basis for costs?
Standard is proportionate costs only and any doubt is in the favour of the paying party.
Indemnity is not proportionate, any doubt is in the favour of the non-paying party.
Interim application for a security for costs order
- Claimant may be required to pay money into the court or provide a bond.
- Only a defendant can make this request
Available where
- The Claimant is a resident outside the jurisdiction,
- The Claimant is a company and there is reason to believe it would be unable to pay,
- The Claimant has changed address/given incorrect address to try and avoid the litigation
- The Claimant is suing on the benefit of someone else
- The Claimant has moved assets outside of England & Wales
