LGS04 Responding DJt SJt

Question 1

Particulars of Claim may be served:-

Answer 1

• With the Claim Form by being written on the second page of the Claim Form
• With the Claim Form by being stapled to the Claim Form
• Separately, at a later date.

Question 2

Deadline for serving Particulars of Claim

Answer 2

By CPR, r. 7.4(1), Particulars of Claim must be served within 14 days after service of the Claim Form; and

By CPR, r. 7.4(2), Particulars of Claim must in any event be served during the [4 month] period of validity of the Claim Form

Question 3

Responding to Particulars of Claim

Answer 3

CPR, rr. 6.26, 9.2, 10.3(1) and 15.4(1): The Defendant has 14 days from the deemed date of service of the Particulars of Claim to respond by filing:

• An admission APA pp 66-67
• An acknowledgment of service (A/S); and/or APA p 65
• A Defence

Question 4

Calculating Time Available for Filing the Defence

Answer 4

Particulars of Claim may be part of the claim form, or a separate non-“claim form” document

1. Have Particulars of Claim been served?
2. Date of act of service
3. Calculate deemed date of service:

• where the Particulars of Claim are endorsed on the claim form, CPR, r. 6.14 it will be the second business day after completion of the relevant step
• where the Particulars of Claim are served separately from the claim form, deemed dates of service are calculated using the rules in CPR, r. 6.26

1. Add 14 days (CPR r. 15.4(1)(a)); or
2. Add 28 days if D has filed an A/S (r. 15.4(1)(b))

Question 5

While this [calculating the date for filing a defence] provides a clear date for the claimant, what is the danger faced by the defendant?

Answer 5

[Answer: there may be delays in the post, or the communication may go astray, or the postmark on the envelope may be later than the date it was placed in the post box (PD 6A, para 3.1). All these may give a misleading date / no notice at all for the defendant].

Question 6

how do you File a Defence or Defence and Counterclaim?

Answer 6

1. Form N9B; or APA p 68-69
2. Draft a formal statement of case called a “Defence and Counterclaim”

Question 7

How do you Extend the time for filing a Defence

Answer 7

CPR, r. 15.5

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.
(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

Question 8

In undefended cases the Claimant can enter default judgment. This arises:-

Answer 8

(a) If the Defendant fails to file either an A/S or a Defence within 14 days of the deemed date of service of the Particulars of Claim
(b) If the Defendant files an A/S admitting the claim
(c) If the Defendant files an A/S stating an intention to defend, but fails to file a Defence within 28 days of deemed date of service of the Particulars of Claim

Question 9

What is the procedure for entering default judgment in money claims.

Answer 9

Procedure in money claimsCPR r. 12.4(1)

Claimant enters default judgment by filing:-

• request for judgment form at court
• certificate of service (unless the court effected service)

Question 10

What is the procedure for obtaining default judgment in in claims for equitable relief

Answer 10

Procedure in claims for equitable reliefCPR r. 12.4(2),(3)

Claimant either:

• abandons the equitable relief and simply requests default judgment on any money claim
• applies using the CPR Part 23 procedure to the court, where at a hearing the Claimant will seek to persuade the court to enter judgment for the equitable relief

Question 11

In which Money Claims cases is an application required to enter default judgment?

Answer 11

Money claims where default judgment requires an application CPR r. 12.10

An application using the Part 23 procedure is required to enter a default judgment even in a money claim:

(a) in claims against children and protected persons
(b) in tort claims by one spouse or civil partner against the other.

Question 12

Exceptions where default judgment is not available

Answer 12

CPR r. 12.3(3)

Claimant is not allowed to enter default judgment if:

(a) (i) D has applied to strike out C’s case
(a) (ii) D has applied for summary judgment
(b) D has paid the whole claim
(c) In a money claim D has filed an admission with a request for time to pay
(d) [closed material case under Justice and Security Act 2013 s 6]

Also not available in Part 8 claims (PD 12, para 1.2(1))

Question 13

Default judgment in claim for specified sum of money

Answer 13

Default judgment in claim for specified sum of moneyCPR r. 12.5(1),(2)

Typically judgment is for the whole sum

• plus interest to date of judgment (for requirements see r. 12.6)
• and costs

C may agree to payment by instalments

Question 14

Default judgment for an unspecified sum

Answer 14

Default judgment for an unspecified sumCPR r. 12.5(3)

Judgment for an amount to be decided by the court, plus costs.

Court will give directions and may allocate to a track (r. 12.7)

Question 15

Default judgment in claim against more than one D

Answer 15

• CPR r. 12.8 provides:
• (1) A claimant may obtain a default judgment on request under this Part on a claim for money or a claim for delivery of goods against one of two or more defendants, and proceed with his claim against the other defendants.
• (2) Where a claimant applies for a default judgment against one of two or more defendants –
  
  • (a) if the claim can be dealt with separately from the claim against the other defendants –
    
    • (i) the court may enter a default judgment against that defendant; and
    • (ii) the claimant may continue the proceedings against the other defendants;
  • (b) if the claim cannot be dealt with separately from the claim against the other defendants –
    
    • (i) the court will not enter default judgment against that defendant; and
    • (ii) the court must deal with the application at the same time as it disposes of the claim against the other defendants.

Question 16

A claimant may not enforce against one of two or more defendants any judgment obtained under tPart 12 for possession of land or for delivery of goods unless –

Answer 16

CPR r. 12.8 provides:

(3) A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless –
(a) he has obtained a judgment for possession or delivery (whether or not obtained under this Part) against all the defendants to the claim; or
(b) the court gives permission.

Question 17

Joint Liability (Part 12)

Answer 17

Where defendants have joint liability, the case comes within r. 12.8(2)(a), and default judgment may be entered against a defendant who fails to file a Defence.

Question 18

Several Liability (Part 12)

Answer 18

Several liability

Where defendants have several liability, under r. 12.8(2)(b) the court must not enter default judgment against those defendants who do not file Defences.

Question 19

What does setting aside mean?

Answer 19

Setting aside means cancelling a judgment or order or a step taken by a party in the proceedings (CPR Glossary).

Question 20

Setting aside as of right

Answer 20

Setting aside as of right

CPR, r. 13.2:

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or
(c) the whole of the claim was satisfied before judgment was entered.

Question 21

Discretionary setting aside

Answer 21

Discretionary setting aside

CPR, r. 13.3:

(1) In any other case, the court may set aside or vary a [default] judgment …

Question 22

Procedure for setting aside default judgment

Answer 22

Procedure

D issues an application notice using the Part 23 procedure (Workbook pp 21-23).

CPR, r. 13.4(3): An application under r. 13.3 must be supported by evidence. This means written evidence supported by a statement of truth.

• Typically in a witness statement (see APA Civil p 363).
• Can use the space on the application notice (Workbook p 22).
• Can rely on the statements of case.

Question 23

Draft defences in applications for setting aside default judgment

Answer 23

It is normal to exhibit a draft Defence with a signed statement of truth to the W/S

Failing to do so has been described as “unsatisfactory”, see

Regione Piemonte v Dexia Crediop SpA [2014] EWCA Civ 1298 at [60]

Question 24

Test for discretionary setting aside

Answer 24

CPR, r. 13.3:

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

Question 25

Discretionary factors on setting aside

Answer 25

Discretionary factors on setting aside

CPR, r. 13.3(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

Question 26

Who has the burden in applications for summary judgment and applications to set aside default judgment?

Answer 26

ED & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, Potter LJ:

• In summary judgment applications the burden of proof is on the applicant to prove the respondent has no real prospects of success
• In applications to set aside default judgment the burden of proof is on the defendant to prove it has a real prospect of successfully defending

Question 27

What are the principles in set aside default judgment

Answer 27

Principles:

• Purpose is to avoid injustice
• Major consideration is whether defence has a real prospect of success
• Can refuse to set aside even if D was not given notice of an application to enter judgment
• Alleged technical failures by C in entering default judgment may not be enough (Henriksen v Pires [2011] EWCA Civ 1720)

Question 28

Factors taken into account when considering an application to set aside default judgment?

Answer 28

Factors taken into account:

PCP-DRAD-PONS-F

• Promptness of application to set aside (r. 13.3(2))
• “Promptly” means acting with all reasonable celerity (Regency Rolls v Carnall [2000] EWCA Civ 379 at [45])
• Duty to act promptly is imposed on D personally (Mullock v Price [2009])
• Significant delay may be enough for a refusal to set aside even if there is a defence (Standard Bank v Agrinvest [2010] EWCA Civ 1400), but not always (Barons Bridging Finance v Nnadiekwe (2012))
• Reasons for any delay (Evans v Bartlam [1937] AC 473)
• Whether delay amounts to an abuse of process
• Whether there has also been a hearing to assess damages
• Prejudice to C if judgment is set aside
• Overriding objective
• D not having notice of the claim before service of the claim form
• D not taking any steps until the judgment is enforced (WB Supp 3.9.5)
• In multi-party claims, whether the default judgment won’t bring finality

Question 29

Regione Piemonte v Dexia Crediop SpA

Answer 29

Regione Piemonte v Dexia Crediop SpA [2014] EWCA Civ 1298 WB para 3.9.5

• Christopher Clarke LJ says at [40] that the considerations in r. 3.9 and the approach in Mitchell / Denton must be taken into account
• Under CPR, r. 13.3(2) it is clear there may be a number of factors the court should take into account (the rule says the factors “include”)
• These include enforcing compliance with rules, PDs & court orders r. 1.1(2)(f)
• On the facts a 7-month delay was serious and significant
• WB 3.9.5 makes the point that Regione Piemonte is not strictly a binding authority because it is an application for permission to appeal
• QB judges appear to be following Regione Piemonte (see WB Supp 3.9.5)

Question 30

Some other good reasonWB para 13.3.2

Answer 30

Some other good reasonWB para 13.3.2

• Broad power to set aside for some other good reason. For example:
• C being unnecessarily aggressive
• Serious allegations of misconduct needing investigation at a trial
• Failure by C to serve a “response pack” (conflicting decisions on this)

Question 31

Setting aside by non-party

Answer 31

Setting aside by non-partyWB para 13.3.4

CPR, r 40.9:

A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.

Alternatively,

Humber Work Boats Ltd v Owners of the Selby Paradigm [2004] EWHC 1804

• First join the Third Party (TP) as D2 using CPR, r. 19.2
• Then TP can apply to set aside under r. 13.3

Question 32

Setting aside on conditions

Answer 32

Setting aside on conditionsAPA Civil paras 13.40-13.41

The court has a general power to impose conditions when it makes any order (CPR, r. 3.1(3)). This applies also to setting aside default judgments. Rule 3.1(3) expressly says this may include a condition to pay a sum of money into court.

It is not uncommon for the court on setting aside to impose conditions:

• (a) requiring D to pay the whole or part of the sum claimed into court
  
  • this operates to give C security in the event D becomes insolvent
  • it should not be in a sum D will find impossible to pay
• (b) ordering D to pay the costs “thrown away” (see PD 44, para 4.2)

Question 33

Abandoned claim to equitable relief restored

Answer 33

Abandoned claim to equitable relief restored

CPR, r. 13.6:

Where –

(a) the claimant claimed a remedy in addition to one specified in rule 12.4(1) (claims in respect of which the claimant may obtain default judgment by filing a request);
(b) the claimant abandoned his claim for that remedy in order to obtain default judgment on request in accordance with rule 12.4(3); and
(c) that default judgment is set aside under this Part,

the abandoned claim is restored when the default judgment is set aside.

Question 34

Interim applications and timing?

Answer 34

Timing

Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it: PD 23A, para. 2.7.

Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time (CPR, r. 23.5).

An interim order can be made at any time, including before proceedings are started (CPR, r. 25.2(1)), subject to the exceptions in r. 25.2(2). Directions to issue r. 25.2(3).

Question 35

What must the appliction notice contain?

Answer 35

Application notice

• Form N244: Workbook pp 21-23
• This states the order sought r.23.6
• States briefly why the applicant is seeking the order r. 23.6
• Fee is payable
• Issued by the court
• Court fixes “the return day”

Question 36

What documents must be filed with an inerim appliaction?

Answer 36

• # Documents
• Application notice N244
• Draft order (unless the application is simple). Lengthy or complex orders should be supplied on disk for the court office PD 23A para 12.1
• Written evidence. Either:
  
  • Witness statement APA Civil p 363
  • Affidavit (rare, other than for committal applications, freezing and search orders)
  • Space on p 2 of the N244 r. 22.1(3)
  • Statement of case
  • Needs to be verified by statement of truth (or sworn: affidavit)
• Skeleton argument Civil Advocacy course
• Application bundle (containing the papers relevant to the application)
• Statement of costs

Question 37

Dealing with application without a hearing

Answer 37

Dealing with application without a hearing CPR, r. 23.8

The court may deal with an application without a hearing if –

(a) the parties agree as to the terms of the order sought;
(b) the parties agree that the court should dispose of the application without a hearing, or
(c) the court does not consider that a hearing would be appropriate.

Question 38

Without notice applications meaning?

Answer 38

Without notice applications APA Civil para 23.20

Means without giving the full 3 days’ notice to the respondent.

Question 39

Dispensing with service of an application notice

Answer 39

Dispensing with service of an application notice

CPR, r. 23.4 and PD 23A, para 3. This is allowed only if:

(a) exceptional urgency
(b) overriding objective best furthered by this
(c) consent of all parties
(d) court grants permission
(e) where a hearing has been fixed for another purpose and a party wants to make an application at that hearing but does not have time to give the 3 days’ notice (PD 23A, para 2.10)
(f) a rule, practice direction or court order permits r. 23.4(2)

PD 23A adds the following situation:

• where the application requires secrecy (eg freezing injunctions) (para 4.2)

CPR, r. 25.3(1) adds “if it appears to the court that there are good reasons for not giving notice”.

Question 40

Dispensing with application notice

Answer 40

Dispensing with application notice CPR, rr. 23.3; 23.3(2)

All applications need an application notice except where dispensing with the N244 is:

(a) permitted by the CPR or by a PD
(b) permitted by a court order

Question 41

Procedure on without notice applications

Answer 41

Procedure on without notice applications

• Issue application notice
• Supported by written evidence
• Written evidence must state the reasons notice has not been given r. 25.3(3)
• Draft order
• Papers filed at court at least 2 hours before the hearing (PD 25A para 4.3)
• Informal or short notice must normally be given (PD 23A para 4.2)

Question 42

Right to set aside or vary without notice orders

Answer 42

Right to set aside or vary without notice orders CPR rr. 23.9, 23.10

An order made without notice must include details of the respondent’s right to apply within 7 days of service to set aside or vary.

CPR, r. 23.9(2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person –

(a) against whom the order was made; and
(b) against whom the order was sought.
(3) The order must contain a statement of the right to make an application to set aside or vary the order under rule 23.10.

CPR, r. 23.10(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside or varied.

(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

Question 43

Duty of full and frank disclosure

Answer 43

Duty of full and frank disclosureWB paras 25.3.5-23.3.8

A without notice application is an exception to the rules of natural justice and the fair trial requirement in the ECHR art 6(1). Therefore a party applying without notice:

• must disclose to the court all material facts
• including those going against the application
• which are known to the applicant
• or which could have been discovered on making reasonable inquiries
• which is a continuing duty

Question 44

Does the duty of full and frank disclosure apply where short notice (less than 3 clear days) is given to the respondent?

Answer 44

CEF Holdings Ltd v Mundey [2012] FSR 35 WB para 25.3.5.1

The duty of full and frank disclosure also applies where short notice (less than 3 clear days) is given to the respondent. Ideally, the witness statement in support should set out how the duty has been complied with

Question 45

Breach of duty of full and frank disclosure

Answer 45

Breach of duty of full and frank disclosure

• R v Kensington ITC, ex p. Polignac* [1917] 1 KB 246
• If breached, the order can, and normally will, be discharged whatever the merits
• Lloyd’s Bowmaker v Brittania Arrow* [1988] 3 All ER 178
• But the court may grant a locus poenitentiae
• Innocent non-disclosures in particular may be forgiven

plural loci poenitentiae

• : an opportunity to withdraw or resile from an inchoate obligation before it is completed : an opportunity to change one’s mind or to decide not to commit an intended crime

Question 46

Sidhu v Memory Corporation [2000] CPLR 171

Answer 46

Sidhu v Memory Corporation [2000] CPLR 171

Counsel told judge that the draft order was in the same terms as the standard order.

In fact the draft included unusual and oppressive clauses about assets and passports. Factors held to be important in deciding whether to discharge were:

• Gravity of the breach
• The excuse or explanation
• Severity and duration of any prejudice
• Whether consequences have been remedied

Question 47

With notice application

Answer 47

With notice applications APA Civil para 23.30

1. Means application documents must be served on the other side
2. As soon as possible after N244 is filed r. 23.7(1)(a)
3. At least 3 clear days before “return day” r. 23.7(1)(b); PD 23A para 4.1

Question 48

Calculating 3 clear days (see CPR r. 2.8(3), (4))

Answer 48

eg. Interim hearing on Wednesday next week

• Ignore weekends because 5 days or less (r. 2.8(4))
• This Friday, and next Monday and Tuesday are the clear days
• Must ignore Wednesday, the day of the event (r. 2.8(3)(b))
• Service must take effect no later than this Thursday
• Service is deemed to take effect in accordance with CPR, r. 6.26
• eg. if served by first class post, deemed service is on the second day after posting (provided that is a business day)
• so if posted this Tuesday, the second day after would be this Thursday

Question 49

Applications requiring 14 days’ notice

Answer 49

Applications requiring 14 days’ notice

• summary judgment (r. 24.4(3))
• interim payment applications (r. 25.6(3))

On these applications

• respondent’s evidence must be filed and served 7 days before the hearing
• any evidence in response from the applicant: 3 days before the hearing

Question 50

Directions for evidence at interim hearings

Answer 50

Directions for evidence at interim hearings

The court may give directions for the filing of evidence in support of or opposing a particular application. The court may also give directions for the filing of evidence in relation to any hearing that it fixes on its own initiative. The directions may specify the form that evidence is to take and when it is to be served: PD 23A para 9.2.

Question 51

Respondents’ evidence

Answer 51

Respondents’ evidence

Where a respondent to an application wishes to rely on evidence which has not yet been served he should serve it as soon as possible and in any event in accordance with any directions the court may have given: PD 23A para 9.4.

Question 52

Procedure at interim hearings

Answer 52

Procedure at interim hearings APA Civil para 23.59

• Usually based on written evidence only
• Usually in public (CPR, r. 39.2). Exceptions: WB para 25.3.4
• Usually heard by a District Judge or Master. Full judge often hears injunction applications

Question 53

Proceeding in the absence of a party

Answer 53

Proceeding in the absence of a party CPR r. 23.11

• the court may proceed in the absence of a party (r. 23.11(1))
• if the court makes an order in the absence of a party, the court may relist the application (r. 23.11(2))
• or set aside, vary, discharge or suspend the order (PD 23A, para 12.2)

Question 54

Totally without merit applications

Answer 54

Totally without merit applications CPR r. 23.12

CPR, r. 23.12 says:

If the court dismisses an application … and it considers that the application is totally without merit –

(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 55

Costs of interim applications

Answer 55

Costs of interim applications APA Civil para 23.65

At the end of an interim application the judge will normally make an order for the costs of the application. The normal starting point is that “costs follow the event” (CPR, r. 44.2(2)(a)).

• 24 hours before the hearing each party files and serves a “schedule of costs”
• At the end of the hearing counsel argue on which party should bear the costs of the application
• A range of alternatives to winner recovering costs from the loser is set out in the table at PD 44, para 4.2 (APA Civil p 514)
• An order that is silent on costs means each side bears its own costs (CPR r. 44.10(1))
• A “summary assessment” of the interim costs will be made if:

(a) the hearing took no more than 1 day (PD 44, para 9.2); and
(b) the order is that one side pays the other side’s costs
* Where costs are summarily assessed, the sum awarded must be paid within 14 days of the order (CPR r. 44.6(1))

Question 56

Where is summary judgment is available ?

Answer 56

Where summary judgment is available CPR r. 24.3

(1) The court may give summary judgment against a claimant in any type of proceedings.
(2) The court may give summary judgment against a defendant in any type of proceedings except –
(a) [certain] proceedings for possession of residential premises; and
(b) proceedings for an admiralty claim in rem.

Question 57

Procedure on summary judgment

Answer 57

Procedure on summary judgment CPR rr 24.4; 24.5

Timing

CPR, r. 24.4(1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed –

(a) an acknowledgement of service; or
(b) a defence,

unless –

(i) the court gives permission; or
(ii) a practice direction provides otherwise.

Question 58

If the relevant Pre-action Protocol has not been complied with, summary judgment should…

Answer 58

If the relevant Pre-action Protocol has not been complied with, summary judgment should not normally be entertained before the Defence has been filed or the time for the Defence has expired (PD 24, para 2(6))

Question 59

Postponement for filing Defence

Answer 59

Postponement for filing Defence

CPR, r. 24.4(2) If a claimant applies for summary judgment before a defendant against whom the application is made has filed a defence, that defendant need not file a defence before the hearing.

Question 60

Application notice in Summary judgment

Answer 60

Application notice

The N244 has to comply with the usual rules, including a statement that it is an application for summary judgment under Part 24 (PD 24, para 2(2)) and identify the written evidence relied upon (para 2(4))

• Must also include a Notice warning the respondent of the 7 day rule for evidence in response (PD 24, para 2(5))

Question 61

Service of evidence etc

Answer 61

Service of evidence etc

Applicant must serve the N244 and witness statement 14 days before the hearing

Respondent must file & serve any written evidence at least 7 days before the hearing

Applicant must file & serve any further evidence at least 3 days before the hearing

Question 62

Who hears an appliation for summary judgment?

Answer 62

Hearing Usually by Master (HC) or District Judge (CC): PD 24, para 3(1)

Question 63

Grounds for summary judgment

Answer 63

Grounds for summary judgment CPR r. 24.2

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

Note: this is one of the most important provisions in the CPR. Exact words required.

Question 64

BOP in Summary Judgment

Answer 64

Burden of ProofWB 24.2.5

Is on the applicant to prove the respondent has no real prospect of success.

Question 65

Real Prospect of Success

Answer 65

Real Prospect of Success

Means better than merely arguable. Summary judgment may be entered if the respondent’s case is false, fanciful or imaginary.

A summary judgment application is not a mini-trial.

Three Rivers DC v Bank of England (No 3) [2003] 1 AC 610, Lord Hobhouse:

“The criterion which the judge has to apply under CPR Part 24 is not one of probability: it is absence of reality.”

The respondent’s case must carry some degree of conviction. The court is not required to accept without question any assertion the respondent may make (Britannia BS v Prangley (2000)).

Question 66

Summary judgment may be suitable where:

Answer 66

Summary judgment may be suitable where:

• there is a short point of law or construction
• the respondent’s case is bad in law

Question 67

Summary judgment is not suitable where:

Answer 67

Summary judgment is not suitable where:

• there is a complex question of law or fact
• the case will benefit from testing the evidence in cross-examination
• documents in support of the case are alleged to be forged
• where apparently credible versions of the facts are advanced by both sides

Question 68

Set-offs

Answer 68

Set-offs and counterclaimsWB 24.2.6

A set-off is a defence. If a set-off has some reality, D will have a real prospect of success, up to the value of the set-off. This means D might have a:

• full defence based on the set-off which at least matches the claim; or
• partial defence if the set-off is worth less than the claim, in which case C should get summary judgment for the undisputed part of the claim

A counterclaim not amounting to a set-off may have an effect on summary judgment if the counterclaim is linked with the claim. WB 24.2.6 suggests a “stay of execution”.

Question 69

Counterclaim (summary judgment)

Answer 69

A counterclaim not amounting to a set-off may have an effect on summary judgment if the counterclaim is linked with the claim. WB 24.2.6 suggests a “stay of execution”.

Question 70

What is a set-off? Examples include:

Answer 70

What is a set-off? Examples include:

• mutual debts
• damages for breach of sale of goods implied terms against a claim for the price
• claim for poor workmanship against a claim for the price of the work
• equitable set-off

Question 71

Excluding right of set-off

Answer 71

Excluding right of set-offWB 24.2.6

A contractual clause may provide there is “no set-off”. The court will give effect to such a clause, resulting in summary judgment for the price even if there is a set-off situation (say) for damages for breach of the SoGA 1979 implied terms.

Question 72

Cheque rule

Answer 72

Cheque ruleWB 24.2.7

A principle of commercial law is that cheques are the equivalent of cash. The “cheque rule” is that on a claim for non-payment of a cheque or a direct debit the court will grant summary judgment without taking into account any cross-claim or set-off.

There are exceptions where summary judgment may be refused on an action for non-payment of a cheque, where there is:

• fraud
• invalidity (of the cheque)
• failure of consideration

Question 73

No other compelling reason for a trial

Answer 73

No other compelling reason for a trial

If there is a compelling reason, despite no defence, summary judgment will be refused. Examples are:

• C’s case is devious or crafty
• C’s case not plain and straightforward
• C has acted harshly and unconscionably
• where a point of construction of a standard contract affects a lot of people
• serious allegations of bad faith are not enough

Note: the WB commentary at WB 24.2.4, p 753, on libel claims forgets that jury trial was abolished for libel claims (Defamation Act 2013, s 11).

Question 74

Orders available on summary judgment

Answer 74

Orders available on summary judgment

PD 24, para 5(1):

The orders the court may make on an application under Part 24 include:

(1) judgment on the claim,
(2) the striking out or dismissal of the claim,
(3) the dismissal of the application,
(4) a conditional order.

Question 75

Conditional Order

Answer 75

Conditional Order

PD 24, para 4:

Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order, as described below.

PD 24, para 5.2:

A conditional order is an order which requires a party:

(1) to pay a sum of money into court, or
(2) to take a specified step in relation to his claim or defence, as the case may be, and provides that that party’s claim will be dismissed or his statement of case will be struck out if he does not comply.

Question 76

Directions (summary judgment)

Answer 76

Directions

CPR, r. 24.6 When the court determines a summary judgment application it may –

(a) give directions as to the filing and service of a defence;
(b) give further directions about the management of the case.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order)

PD 24, para 10: Where the court dismisses the application or makes an order that does not completely dispose of the claim, the court will give case management directions as to the future conduct of the case.

Question 77

Costs in summary judgment

Answer 77

Costs in summary judgment PD 24, para 9

9. 1 Attention is drawn to Part 45 (fixed costs).
10. 2 Attention is drawn to Practice Directions 44 to 48 on costs and in particular to Subsections 8 and 9 of Practice Direction 44, which relate to the court’s power to make a summary assessment of costs.
11. 3 Attention is also drawn to rule 44.10(1) which provides that if an order does not mention costs no party is entitled to costs relating to that order.

Question 78

Setting Aside order for summary judgment

Answer 78

Setting Aside order for summary judgment PD 24, para 8

8.1 If an order for summary judgment is made against a respondent who does not appear at the hearing of the application, the respondent may apply for the order to be set aside or varied (see also rule 23.11).

8.2 On the hearing of an application under paragraph 8.1 the court may make such order as it thinks just.