DR tests summarised Flashcards
Interim payment?
- The D has admitted liability to pay damages
- The D has had judgment awarded against it with damages to be assessed
- If matter went to trial, C would win substantial amount against D
Grounds for disputing an interim payment (3)?
A. technical point is taken that the claimant has not complied with the rules for applying for an interim payment;
B. The claim lacks merits so there is a serious doubt that the claimant will recover anything;
C. Value: either the claimant is unlikely to recover a substantial amount of money or the amount sought by way of interim payment is higher than a reasonable proportion of the likely amount of final judgment.
Summary judgment test?
How would first point be defeated?
The claimant/defendant has no real prospect of success/defending and
no other compelling reason why case should be disposed of a trial
Showing case more than merely arguable (not fanciful, imaginary or false) - some chance it will succeed (even if improbable)
Interim injunction?
- Is there a serious question to be tried ‘not frivolous or vexatious’
- Would damages be adequate?
- Balance of convenience (broad range of factors)
Equitable factors - delay, ‘clean hands’, won’t be granted if severe no practical purpose
Security for costs?
- C out of jurisdiction (and not resident in Hague Convention)
- C is a company and reason to believe unable to pay costs order
- C has taken steps in relation to assets which would make enforcing costs order difficult
Other:
1. C failed to provide an address in the claim form
2. C has changed address in claim form with a view to evading consequences of litigation
3. C is a nominal c and reason to believe won’t be able to pay
What 2 things must D prove for security for costs
What 2 things will make D less likely to succeed?
What 3 things will make D more likely to succeed?
- Having regard to all circumstances of case, just to make an order
- One or more of the grounds satisfied
Less likely = delay, open offers to settle with C, D responsible for C’s financial position
More likely = claim which appears not be genuine, claim has little prospects of success
Relief from sanction test? (denton)
- If the breach is neither serious nor significant (does not imperil a future hearing or otherwise obstruct proceedings) then relief should be granted
- If breach is serious or significant, consider why breach occured
- Evaluate all circumstances of case to be dealt with justly (consider overriding objective)
Default judgment?
- Date on which judgment is entered, time has expired for filing acknowledgment of service (not served either ack or def) or time has expired for serving a defence (if ack served)
- Claim has not been admitted or satisfied by D
- No app for summary judgment or strike out has been made by D
Application to set aside default judgment
Cases where court must set aside?
Cases where court may set aside? Test?
Judgment wrongly entered - must set aside
-time limit for serving ack or def not expired
-ack or def had been filed on time
-summary judgment had been applied for before judgment was entered
-D had satisfied whole of claim, admitted claim or required time to pay
Judgment correctly entered - may set aside
-D has real prospect of successfully defending claim
-It appears other good reason why judgment should be set aside or varied, or D allowed to defend
‘real prospect os success’ - not enough to show arguable defence
Court will apply denton principles in deciding on discretionary ground
Pre-action disclosure?
What if all elements satisfied?
General costs rule with these apps?
-Applicant likely to be party to proceedings
-Respondent likely to be party to proceedings
-if proceedings were initiated, docs would be required to be disclosed under standard disclosure
-the disclosure is necessary to dispose fairly of anticipated proceedings, assist dispute to be resolved without proceedings, or to save costs
Doesn’t have to grant disclosure (discretionary!!)
Applicant will have to pay respondents costs (not absolute rule)
Procedure of specific disclosure?
What is specific inspection?
App must:
Usually in witness statement
-specify order sought and docs need to be disclosed (the more specific, more likely to be granted)
-evidence
Specific inspection:
-Order for a party to permit inspection which has been disclosed, but disclosing party alleges would be disproportionate to allow (rare)
Strike out?
a) no reasonable ground to bring defence/claim
b) Abuse of court process or otherwise likely to disrupt just disposal of proceedings (using process in for purpose/in a way significantly different from ordinary and proper use)
c) Failure to comply with rule, practice direction or court order
Test on appeal (first appeal)?
Grounds - will only allow appeal if decision of lower court was:
-Wrong (error of law, error of fact, or error in exercise of court’s discretion); or
-Unjust because of SERIOUS procedural or other irregularity in the proceedings in the lower court (e.g. party given no chance to make submission)
Permission only granted if court considers
-Appeal would have real prospect of success; or
-that there is some other compelling reason why the appeal should be heard
Test on appeal (second appeal) if in Court of Appeal?
Appeal would have real prospect of success and raise an important point of principle or practice; or
these is some other compelling reasons for Court of Appeal to hear it
Test for non-party disclosure?
a) the docs are likely to support the applicant’s case or adversely affect the case of one the other parties, and
b) Disclosure is necessary in order to dispose fairly of the claim or save costs
-If satisfied, court has discretion!!
