DR Tests only Flashcards
(33 cards)
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
