SQEII Flashcards
List out the type of application common to civil advocacy:
i) Summary Judgement
ii) Setting aside default Judgement
iii) Security for costs
iv) Interim Prohibitory injunction
v) Unless Order
vi) Strike Out
vii) Relief from Sanction
Describe the test applied for summary judgement
the power is discretionary.
Procedural law is CPR 24.2
if the applicant can show:
The claimant has no real prospect of succeeding on the claim or issue
the defendant has no real prospect of successfully defending the claim or issue, and
there is no other reason why the case or issue should be disposed of at trial
Describe the test applied for setting aside default judgement
the grounds to set aside a judgement can be mandatory or discretionary
Procedural Law are CPR 13.2 - 13.3
if a judgement was wrongly entered, the judge must set aside the judgement.
Discretionary grounds:
The defendant has a real prospect of successfully defending the claim and,
it appears to the court that there is some other good reason why the judgement should be set aside
Describe the test for setting aside security of costs
the power is discretionary.
if the applicant can show:
the claimant is resident outside the jurisdiction
the claimant is a company and other body and thee is reason to believe that it will unable to pay the defendant’s costs if ordered to do so
the claimant has changed address since the claim was started with a view to evading the consequences of litigation or
the claimant failed to provided an address of gave an incorrect address in the claim form
Describe the test for interim prohibitory injunction
The power is discretionary to grant an injunction if the applicant has provided a cross-undertaking in damages and show that:
there is a serious question to be tried
damages would not be an adequate remedy for the loss, and
the balance of convenience lies in favour of the injunction
Describe the test for unless order
Discretionary power to make an order if the applicant can show:
the other party is in breach of a court order, and
the applicant have complied with the order
Describe the test for strike out
The power is discretionary. in whole or in part
CPR 3.4
if the applicant can show:
the statement of case discloses no reasonable grounds for bringing or defending the claim (no cause of action or the defence is a bare denial)
the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings
there has been a failure to comply with a rule, practice direction or court order
Effect: the statement of case/parts of the statement of case are deleted and there cannot be relied upon.
Describe the test for relief from sanctions
given the conditions for relief have been complied with, the court will consider all the circumstances of the case so as to enable it to deal justly with the application, including the need for
- litigation to be conducted efficiently and at proportionate cost, and
- to enforce compliance with the rules, practice directions and orders.
Common arguments made for setting aside on mandatory grounds (4)
The defendant never received the claim form/particulars of claim;
The defendant received the claim form/particulars of claim, but they were not validly served;
The defendant claims to have filed a defence/acknowledgement of service even though the court has no record of this;
The defendant did file an acknowledgement or service/defence before default judgment was obtained, even though it was filed late,
Advantages and disadvantages of serving a claim through court
Once the papers have been despatched to the court, the court is responsible for serving. So long as the address for service is correct, the proceedings will be deemed served if not returned to the court.
Once sent to the court, it is out of the solicitor’s hands. They are reliant upon the court with regard to timescales for service. No amendment can be made without permission of the court once the claim form is served by the court
Advantages and disadvantages of serving a claim through solicitor service
The solicitor retains control of the process. They can serve the claim form when they are ready to do so. If any amendments become necessary between issue and service, they can be made without permission of the court before serving.
The solicitor retains the responsibility to serve. if the claim form is not served on time, the claim will be struck out. It will be for the solicitor to prove that the service has been affected validly.
Legal authority for charging interest on damages:
in a damages claim the interest can be charged at an agreed contract rate or pursuant to the court’s jurisdiction to award interest in accordance with section 35A of Senior Courts Act 1981 or section 69 of the County Courts Act 1984
Recite Statement of Truth
I believe or the claimant believes that the facts stated in these Particulars of Claim are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
4 most likely tested examples for DR legal drafting
Letter of claim in a simple letter
Particulars of Claim in a simple letter
Defence in a sample letter
Tomlin Order
The standard wording to begin a defence
An admission.
A denial
Save where otherwise indicated all references to numbered paragraphs in this defence are to the Particulars of Claim.
Paragraph is/are admitted/not admitted/neither admitted or denied. and the claimant is put to strict proof thereof.
Paragraph is/are denied. [begin a positive case either by stating it is averred that, or it is the defendant’s case that]
