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Advocacy > SPA 2 - Dispute Resolution > Flashcards

SPA 2 - Dispute Resolution Flashcards

1
Q

How should you structure your submission?

A
  1. Introduction
  2. Signpost what your application is for and how you are going to deal with it
  3. Submissions
  4. Conclusion
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2
Q

What should you do in your introduction?

A

If in Chambers and appropriate, greet the judge, introduce yourself, tell the judge which party you represent + what the application is for.

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3
Q

What evidence will the judge have?

A

The application + witness statements filed by both sides

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4
Q

How should you end your submission?

A

Short summary + conclusion

Short summary - explain why the court should exercise their discretion.

Conclusion - ask the judge for the order you are seeking

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5
Q

What are interim applications?

A

Usually, pre-trial requests for a court order

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6
Q

When should an interim application be made?

A

As soon as it is apparent that it is necessary or desirable.

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7
Q

What notice should be given of an interim application?

A

They should be on at least 3 clear days’ notice (5 if by telephone)

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8
Q

When is notice of an interim judgment not required?

A

If there is good reason.
E.g., notice will give the other party an opportunity to dispose of evidence or assets

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9
Q

What happens if notice was not given before an interim order was given?

A

The party against whom the order is issued has 7 days after the order is served on them in which to make an application to set aside the order

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10
Q

What happens if a party makes an interim application without notice erroneously?

A

The court is likely to dismiss it and order the solicitor who made the application to pay the other side’s legal costs associated with the application

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11
Q

What should be done with evidence relied on in support of the interim application?

A

All evidence relied on in support of the application should be in writing and filed at court along with the notice.

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12
Q

When should the applicant for an interim application file and serve a case summary and proposed draft order?

A

The applicant should file and serve a case summary + proposed draft order no later than 2 days before the hearing

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13
Q

What are examples of an interim application?

A
  1. Unless orders
  2. Orders to set aside a default judgment
  3. Summary judgment
  4. Application to strike out a claim
  5. Interim payment
  6. Interim injunctions
  7. Freezing injunctions
  8. Search orders
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14
Q

What is a summary judgment?

A

An interim order that can be applied for by either party during the proceedings.

The applicant asks the court to enter judgment for the applicant without proceeding to trial.

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15
Q

What must the applicant show for a successful interim application for summary judgment?

A

That the other party has no real prospect for succession + there is no compelling reason why the case should proceed to trial

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16
Q

When can application for summary judgment not be made?

A

Cannot be made before the defendant has received the particulars of claim + has served an acknowledge of service or defence

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17
Q

What happens if the claimant applies for summary judgment before the defendant files a defence?

A

The defendant need not file a defence until after the summary judgment hearing (although the defendant may want to append a defence to a witness statement opposing the application to help defeat the application).

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18
Q

What does the applicant for summary judgment usually include in the application?

A

Written evidence to support the application

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19
Q

When must written evidence to support a summary judgment application be served?

A

Must be served on the other party at least 14 days before the hearing

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20
Q

When must the opposing part serve evidence in a summary judgment situation?

A

Must serve evidence in response at least 7 days before the hearing

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21
Q

What can an application for summary judgment be combined with?

A

A motion to strike out a claim

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22
Q

Why is an application for summary judgment fairly common in practice?

A

It is a way for a party to dispose of a case without going through the expense of the whole trial

23
Q

What is the test used for granting the application for summary judgment?

A
  1. No real prospect of success, and
  2. There is no other compelling reason why the case should proceed
24
Q

What is an application to strike out a claim?

A

Asks the court to strike out a claim in the Statement of Case because:
a. the statement discloses no reasonable ground for making/defending the claim,

b. the Statement of Case is an abuse of the court’s processes, or

c. there has been a failure to comply with a rule, practice direction, or order

25
Q

What is an application for an interim payment?

A

Application for the court to order some payment before the court has given a final determination on the claim

Always discretionary

26
Q

When can the court not award an interim payment?

A

If doing so would cause an injustice

27
Q

What are the grounds for an order of interim payment?

A
  1. the defendant has admitted liability,
  2. the claimant has obtained judgment, but the sum to be paid is not yet assessed,
  3. the court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum
28
Q

What should an applicant for an interim payment do prior to making the application?

A

Should invite the other party to make an interim payment before making an application

29
Q

When can a claimant not make an application for an interim payment?

A

Cannot make an application until the time for filing an acknowledgement of claim has passed

30
Q

What must an application for interim payment be supported by?

A

Evidence served with the application served at least 14 days before the hearing

31
Q

What should an application for interim payment include?

A
  1. the sum sought
  2. the matters for which it is sought
  3. an estimate of the expected judgment, and
  4. in a personal injury claim, a schedule of loss detailing both past and future loss
32
Q

What is not necessary for an application for interim payment?

A

Not necessary to show financial need

33
Q

What can the court award if an application for interim payment is successful?

A

Can award a reasonable proportion of the likely amount of the final judgment.

Court must take contributory negligence into account (if relevant)

34
Q

What is an application for an interim injunction?

A

An application asking the court for an order requiring a party to do something (mandatory) or prohibiting the party from doing something (prohibitory)

35
Q

How are injunctions enforceable?

A

Through contempt proceedings + usually include a penal notice so that contempt may be imposed without first seeking an unless order.

36
Q

What may happen if a party is found in contempt?

A

May be imprisoned for up to 2 years.
Party’s assets may be removed (sequestered)

37
Q

What happens if injunctions are obtained without notice of the hearing?

A

Another hearing will be set within a few days of the first hearing (the ‘return date’) to give the enjoined party an opportunity to explain why it should not have been granted

38
Q

When can an application for an injunction be made?

A

Possible to apply for an injunction before proceedings commence

39
Q

What types of injunction can the different courts make?

A

High Court - can grant any type of injunction
County Court - limited jurisdiction to order injunction

40
Q

How long does it take to obtain an injunction?

A

Can be obtained in as little as 48 hours + may be applied for by telephone

41
Q

On what grounds may an enjoined party seek to discharge an injunction?

A
  1. The applicant failed to provide all relevant information (material non-disclosure)
  2. The applicant failed to comply with terms of the injunction
  3. The facts don’t support the injunction
  4. The injunction is oppressive
  5. There has been a material change in circumstances since the injunction was granted, or
  6. The claimant failed to prosecute the claim with due speed after obtaining the injunction
42
Q

What is a freezing injunction?

A

Prohibits the enjoined person from disposing of specified assets.

43
Q

Where must applications for freezing injunctions be made?

A

Only to the High Court

44
Q

What must the applicant prove for a freezing injunction?

A
  1. there is a justifiable cause of action
  2. the claimant has a good, arguable case,
  3. the defendant has assets within the jurisdiction, and
  4. there is a real risk that the defendant may dispose of or dissipate those assets before judgment can be enforced
45
Q

What does a freezing injunction usually require of the applicant?

A

An undertaking to pay damages if the injunction was improvidently granted and also to notify the enjoined party and third parties, such as banks, of a right to seek a variation from the order.

46
Q

What restrictions are there on a freezing injunction?

A
  • Should be for no more than the underlying claim
47
Q

Who is a freezing injunction binding on?

A

All parties with knowledge of it

48
Q

How can an enjoined party seek discharge from a freezing injunction?

A

By offering security for the claim or showing the injunction was obtained on the basis of material non-disclosure

49
Q

When can the other party ask for a search order?

A

If it is clear the defendant will not obey the rules relating to disclosure + may seek to destroy incriminating documents or property

50
Q

What does a search order do?

A

Requires the enjoined party to allow the other party to search for, and potentially seize, evidence that the party might otherwise destroy

51
Q

Where must an application for a search order be made to?

A

May be obtained only from the High Court

52
Q

What notice is usually given for search order applications?

A

Such orders are almost invariably sought wihthout pre-hearing notice to the enjoined party

53
Q

What are the grounds for making an application for a search order?

A

i. A strong prima facie case on the merits of the case,

ii. Th reasons for claiming the enjoined party might hide or destroy the evidence, and

iii. Clear evidence the property or documents are in the enjoined party’s possession.

54
Q

What usually happens if the search order is granted?

A
  1. An independent supervising solicitor will usually be appointed to explain the order to the enjoined party + explain their rights
  2. The claimant’s solicitor will be required to give an undertaking to return original documents within 2 days + to secure the property taken

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