Likely Disputes Applications Flashcards
What is the test for an application for summary judgment?
CPR 24.3
- The claimant has no real prospect of succeeding on the claim or issue OR the defendant has no real prospect of successfully defending the claim or issue.
Note: No real prospect = position is fanciful, imaginary or false. To defeat application just to show there is chance of defence/succeeding.
- There is no other compelling reason why the case or issue should proceed to trial
E.g:
(i) more time for defence to investigate claim;
(ii) the need for expert evidence to resolve the matter;
(iii) complexities of the case; and
(iv) scrutiny of key documents.
What is the test for default judgment?
CPR 12.3
- Time limit has expired for acknowledging service or filing a defence (28 days or 14 days)
- Claim has not been admitted or satisfied by the defendant
- No application for summary judgment or strike out has been made by the defendant.
What is the mandatory ground for the court setting aside default judgment?
CPR 13.2
The court must set aside default judgment if it was wrongly entered into because:
(i) the time limit had not actually expired for filing the acknowledgement of service or defence
OR
(ii) an acknowledgement of service or defence was filed
OR
(iii) summary judgment or strike out had been applied for before judgment was entered
OR
(iv) Defendant had satisfied the claim before the judgment was entered
When does the court have discretion in deciding to set aside default judgment?
CPR 13.3
The court may set aside default judgment if defendant has:
(i) reasonable prospect of successfully defending the claim (more than merely arguable defence which is supported by evidence)
OR
(ii) it appears to the court that there is some other good reason why judgment should be set aside or varied or the defendant should be allowed to defend the claim
AND in any event
(iii) application to set aside default judgment was made promptly
If the defendant is seeking the court to set aside default judgment on a permissive ground, what else should the defendant seek?
Relief from sanctions
What is the test for relief from sanctions?
Denton test and CPR 3.9
(i) was the breach serious or significant? Consider:
a) Does it imperil future hearing dates? If yes = no relief.
(ii) was there a reason for the breach?
(iii) consider all circumstances of the case so the court deals justly with the application with regards to:
(a) litigation must be conducted efficiently and at proportionate cost and
(b) the court must enforce compliance with rules, practice directions and orders.
(c) promptness of application
(d) previous compliance
What is the test for security for costs?
CPR 25.12-13
Application is made by someone in the position of defendant who is concerned about the claimant’s ability to pay their costs.
- Application is made promptly
- Having regard to all the circumstances, is it just to make an order? Consider:
(i) will it bankruptcy claimant? is defendant responsible for claimant’s financial difficulties?
(ii) has the application been made promptly?
(iii) do they have a good chance of success?
(iv) has D admitted liability? (will make application less likely to succeed)
- Satisfied one of the following conditions apply:
(i) claimant is outside of jurisdiction (not in state bound by Hague Convention eg USA)
(ii) Claimant is a company and there is a reason to believe it will not be able to pay defendant’s costs if ordered to do so.
(iii) Claimant has taken steps in relation to assets which would make enforcement order difficult (i.e. alienating assets or transferring them)
(iv) claimant has changed address since claim was commenced
(v) claimant has failed to give an address in the claim form.
- Amount of security: court making order will determine the amount as well as the manner in which security is given
(i) amount = court’s discretion but will take into account D’s likely costs (incurred or future)
(ii) manner = payment into court/solicitor/bank guarantee/undertaking
What is the test for interim prohibitory injunction?
CPR 25 and 25A
if without notice, explain the reasons it is without notice.
Test: American Cyanamid Guidelines
- Is it just and convenient?
(i) it is an equitable and discretionary remedy - clean hands/no delay/must serve practical purpose
- Is there a serious question of law to be tried?
(i) application must not be frivolous or vexatious
- Would damages adequately compensate the other party if an injunction was wrongly given or not given? (usual to give cross-undertaking in damages to deal with this)
(i) Applicant: court will not grant an application if they applicant could be adequately compensated by damages for any loss caused. Inadequate if:
a) respondent can’t pay
b) harm is irreparable or unquantifiable
c) injustice is irreparable
d) compensation is unquantifiable (eg damage to reputation)
(ii) Respondent: could potential injustice be adequately compensated for by damages? If injunction is granted the respondent will be prevented from doing something or required to do something until trial - could they be adequately compensated if wrongly granted? If not, then this points against relief, if yes it points to relief.
- Where does the balance of convenience lie? Court will look at whether granting or not granting the injunction carries the lesser risk of injustice
(i) is it more inconvenient to the respondent if the injunction is granted
(ii) is it more inconvenient to the applicant if the injunction is not granted
What must be done with without notice applications?
Must explain why no notice is given
Draw attention to arguments and evidence that supports the respondent’s position
What is the test for a freezing injunction?
CPR 25.1 and s 37 Senior Courts Act 1981
- Good arguable case
- Assets belonging to or under their control within the jurisdiction
- Real risk that the respondent may dissipate their assets
- Just and convenient
- Other factors
- Applicant gives undertaking to pay sum to respondent if freezing injunction wrongly entered into
What is the test for a search order?
Must demonstrate to the court:
- The party has a good arguable case
- Damage caused or likely to be caused as a consequence of not obtaining a search order is very serious
- Other party has documents in its possession and there is a real possibility they will be destroyed or corrupted if given notice
- Harm likely to be caused be executing the search order must not be excessive or out of proportion to the legitimate object of the search order
What is the test for an interim payment?
CPR 25.6-9
Can only be made by claimant.
Discretionary power of the court.
- One of the conditions in CPR 25.7(1) is met:
(i) Admitted liability - defendant has admitted liability to pay damages (or some other sum of money to the claimant)
(ii) Obtained judgment - the claimant has obtained judgment against the defendant to be assessed (or for a sum or money other than costs) to be assessed
(iii) The court is satisfied that if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim
The court must NOT order an interim payment of more than a reasonable proportion of the likely amount of the final judgment:
- here the court must take into account contributory negligence set off or counterclaim
Evidence:
- sum of money for which final judgment is likely to be given
- sum sought for the interim payment
- items or matters in respect of which the interim payment is sought
- any other relevant matters
- details of special damages (PI claims)
- details of the person on behalf the claim is brought (fatal accidents)
