Ending Cases Early: Default Judgement, Strike Out, Summary Judgement, Discontinuance, and Consent Orders

Question 1

what is a default judgement claim, who can apply for it, and when can an application be made?

Answer 1

the claimant can apply for judgement to be granted in its favour without trial if the defendant has not responded to a claim

not based on merits of the claim - administrative

effect = C wins the case

only when D did not:
- file AoS, defence, or admission
- apply for summary judgement or strike out

Question 2

does a default judgement have to be decided at a hearing or on paper? (3 cases)

Answer 2

1. specified money claims = C requests judgement and application is dealt with on paper, and court makes a judgement for the sum, fixed costs, and interest
2. unspecified money claims = C requests judgement and application is dealt with on paper, and court enters judgement for sum to be decided at a later hearing
3. non-money claims = claim must be decided at a hearingand D can make arguments against default judgement

Question 3

what can a defendant do if the claimant successfully applied for default judgement?

Answer 3

D can apply to the court to set the default judgement aside under CPR 13

must be determined at a hearing (unless C consents)

Question 3

when does the court not have a choice but to set the default judgement aside after D applied? (5)

Answer 3

when the judgement is wrongly entered:
1. time limit for AoS or defence did not expire when C entered DJ
2. AoS or defence were filed on time
3. D filed for summary judgement or strike out before judgement was entered
4. D paid the whole of the claim or required time to pay before judgement was entered
5. D admitted the claim

Question 3

if the judgement was not wrongly entered, what can the defendant do to have a default judgement set aside?

Answer 3

D can apply to the court asking it to exercise its discretion and set the judgement aside

Question 4

what is the test for D to apply to the court to exercise its discretion to set a default judgement aside?

Answer 4

TEST

1. the defendant has a real prospect of successfully defending its claim (must be more than merely an arguable case)

and / or

2. it appears to the court that there is some other good reason why the judgement should be set aside or the defendant should be allowed to defend

AND the court considers how promptly D made the application to set the judgement aside

AND Denton (seriousness and significance of default, reason for default, all the circumstances and giving effect to the overriding objective)

Question 5

what are examples of ‘good reasons’ to set the default judgement aside or allow D to defend when D asks the court to exercise its discretion to set a default judgement aside?

Answer 5

• matter outside D’s control (illness)
• C lulled D into believing a claim was not forthcoming
• C failed to serve a response pack
• C failed to comply with the overriding objective or PD on pre-action conduct
• the claim raises issues which should be given full and fair hearing in the public interest - e.g., expert evidence is needed, issues in dispute are complex, documentary evidence is disputed or complex and needs analysis
• the overriding objectiveand justice requires DJ to be set aside - e.g., D could not file a defence on time because it was unrepresented or a matter outside of its control precluded it like illness

Question 6

what is discontinuance?
what is its effect? (2)
is the court’s permission needed?

Answer 6

C can at any time discontinue a claim or part of a claim

effect:
1. ends the proceedings in relation to the discontinued claim
2. C must pay D’s costs up to the point of discontinuance (costs order is deemed made when C serves the notice)

court permission not needed unless C received an interim remedy

Question 7

what is a consent order and when can it be made?

Answer 7

when a dispute is settled between parties during proceedings (not before), parties can record the terms of their settlement in a consent order - this will take effect like a normal court order

parties must apply to court for approval

Question 8

can the court intervene with the terms of a consent order? (2 cases)

Answer 8

1. if order is based on contract (e.g., Tomlin Order) = no
2. if order is not based on contract = court can vary or alter the order

Question 9

what are Tomlin orders?

Answer 9

type of consent order where parties can record the terms of their settlement - it is usually used in conjunction with a settlement agreement

made up of 2 parts:
1. Part 1 - ‘Order’ = stay of proceedings, each party shall have permission to apply to court to enforce the order, costs assessment - PUBLIC
2. Part 2 - ‘Schedule’ = contains terms of agreement - CONFIDENTIAL

Question 10

what are the benefits of a Tomlin order? (4)

Answer 10

1. terms of settlement remain confidential (not publicised)
2. terms can go beyond what the court has the power to order
3. the whole order is enforceable by a further court order in later proceedings - enforcement proceedings are simpler than issuing a claim for breach of settlement agreement
4. court is unlikely to intervene with terms

Question 11

can a consent order be agreed for an issue being dealt with at an interim application?

Answer 11

yes

but if issue relates to a case management decision, court does not have to approve the order but parties’ agreement makes approval more likely (e.g., extending time to serve witness statements)

Question 12

what is a strike out?

Answer 12

• the court has the power to direct the deletion of written material from a statement of case (or the whole SoC) so that it cannot be relied on in proceedings (or so that the case is over and judgement can be entered)
• strike out targets cases that are inadequately drafted or an abuse of the court process or week on legal claims (not week on facts)

Question 13

what are the grounds for strike out? (3)

Answer 13

the applicant can rely on one or more grounds:

1. the statement of case discloses no reasonable ground for bringing or defending the claim
2. the statement of case is an abuse of the court’s process or is likely to obstruct the just disposal of proceedings
3. there has been a failure to comply with a rule, practice direction or court order

Question 14

in what cases can someone bring a strike out application on the ground that the statement of case discloses no reasonable ground for bringing or defending the claim?

Answer 14

examples:
- defence does not deal with each para in PoC or does not provide reasons for denying PoC
- PoC does not provide facts for its claims

BUT: courts use strike out sparingly - instead may require R to amend the SoC and may impose sanctions like adverse costs order for wasting court’s time

Question 15

in what cases can someone bring a strike out application on the ground that the statement of case is an abuse of the court’s process or is likely to obstruct the just disposal of proceedings?

Answer 15

where the court process is not used for the purpose for which it was designed

example = vexatious litigant issuing proceedings with no intention of taking the case further

Question 16

in what cases can someone bring a strike out application on the ground that the respondent failed to comply with a rule, PD, or court order?

Answer 16

where both the SoC or the general conduct of the respondent does not comply with a rule, PD, or order

BUT: if a fair hearing is still possible, the court is unlikely to strike out as it is not just to bar a litigant from proceedings over a technical breach - the court will instead impose sanctions like an adverse cost order or require amending the SoC

examples =
- late service and exchange of docs
- not attending court when ordered
- failure to allow inspection
- being unprepared for court hearings
- SoC not complying with rules e.g., bare denials or not addressing each para of PoC; PoC not providing facts for claims

Question 17

what is a summary judgement claim?

Answer 17

a summary judgement claim allows the court to dispose of weak claims (whole claims or certain issues)

the claim or issue will no longer be heard at trial

Question 18

who can apply for summary judgement and when? (3)

Answer 18

(1) claimant = can apply after D filed an AoS or defence (or earlier with court permission)

(2) defendant = can apply at any time after proceedings commence

(3) court = can fix a hearing of its own initiative

(ideally = C/D should apply before or at the same time as filing directions questionnaire to avoid incurring unnecessary cost)

Question 19

what is the effect of a party lodging a summary judgement application?

Answer 19

creates a pause in proceedings:
- if C applies before D serves defence = time limit to file defence extended until after SJ hearing
- if D applies = D does not gave to file an AoS or defence until after SJ hearing

Question 20

what is the test for summary judgement? (2 ‘grounds’)

Answer 20

(1) The other party has no real prospects of success to claim / defend the claim or issue

AND

(2) There is no other compelling reason why the case or issue should be disposed of at trial

Question 21

what is meant by ‘no real prospects of success’ on an issue or claim for summary judgement applications?
how can this be defeated by the respondent?

Answer 21

1. no real prospect of success =
   - the position is fanciful, imaginary or false
   - ‘real’ means more than merely arguable
2. respondent =
   - does not have to show the case will probably succeed but must only show that it has some chance of success even if improbable
   - low hurdle to overcome = show the prospects of the claim / defence is not fanciful, imaginary, or false
3. respondent can do the following to defeat the application:
   - argue the merits of its own case and cause of action (with reference to evidence)
   - poke holes in the applicant’s claim / evidence

Question 22

what are examples of ‘compelling reasons’ why the case / issue should be disposed of at trial that a respondent to a summary judgement application can put forward to defeat it? (8)

Answer 22

• R needs more time to investigate the matter
• expert evidence is needed so the matter must be taken to trial
• parties argue different versions of facts
• multi-party or complex litigation that requires trial
• key documents are in dispute and must be scrutinised
• D has a right to trial by jury (fraud alleged)
• the overriding objective requires trial - it is just for R to put forward its claim / defence
• state it would be a waste of the court’s time and costs to grant SJ which would force R to issue a new claim against A

Question 23

what type of evidence should the applicant adduce in a claim for summary judgement?

Answer 23

• witness statements, documentary evidence, or expert evidence
• evidence the grounds of summary judgement = evidence that R has no real prospects of success and that there are no other compelling reasons why the case should be disposed of at trial
• identify any point of law or documentary provision that A relies on