Syllabus Area 12 - Default Judgement and Summary judgement Flashcards
What is the meaning of default judgment?
Where the claimant applies for judgment to be granted in their favour WITHOUT a trial if the Defendant has not responded to the claim via AOS or defence within the time limits.
Who can apply for default judgement?
Only the Claimant.
What does default judgement mean if successful?
The claimant has won the case.
When can DJ not be obtained?
Part 8 claims, delivery of goods subject to agreement regulated by the Consumer Credit Act 1974, where PD provides cannot obtain DJ e.g probate, admiralty, claims for provision damages, where a SOC has been struck out or the whole claim has been satisfied.
What are the conditions to be satisfied for a DJ?
Either: AOS - where D has not filed an AOS (14 days after POC served), defence - AOS filed but defence not filed, but neither admitted, counterclaim - where the claim is a counterclaim and a defence has not been filed.
What is the procedure for obtaining DJ for a money claim?
If it is a money claim, claimant files a request for a DJ on relevant form, stating D’s DOB, specifying the value of claim/amount to be decided.
What is the procedure for obtaining DJ for a delivery of goods claim?
Relevant form giving alternative ways to pay D the value of the claim.
What is the procedure for obtaining DJ if it not either a delivery of goods/money claim?
C must make an order under Part 23.
When it is a specified money claim, what must the claimant do?
The C must specify the date the whole debt is to be paid, timing and rate and if it is installments.
Will interest be included for a specified money claim?
It may be included if the POC details of interest/where the interest is claimed.
Will interest be included for unspecified money claims?
It is to be decided by court.
Will interest be included for delivery of goods?
The DJ may require D to pay/deliver goods at that value specified by the court and pay costs.
What is the general rule of interest?
Interest may be included and it will be decided by court.
What if the claim has more than one defendant and wants to seek DJ?
Claimant has option to seek DJ for some of the D’s and the remaining continue to trial if the claim can be separated.
What if the claim has more than one defendant and wants to seek DJ but claim cannot be separated?
The court will not enter into DJ and court must deal with application as same time as entering judgment at trial.
What if the claim is a land claim and has more than one defendant and wants to seek DJ?
C may not enforce against more than one D for possession of land/delivery of goods unless they have obtained judgement against all the D’s or they have courts permission.
When must the claimant make an application for a DJ?
If it is a protected party, child or against a spouse/civil partner.
What is the rule about entering DJ against a protected party?
Must have LF before judgment can be obtained with evidence that they are entitled to judgement.
What is an application to set aside a DJ also known as?
An application for relief of any sanction.
What case must be applied for setting aside a default judgement?
Denton
When MAY a court set aside or vary a default judgement?
If D has a real prospect of defending the claim OR there is some good reason that the judgment should be st aside or varied OR the D should be allowed to defend the claim.
When MUST a court set aside or vary a default judgement?
If the judgement was wrongly enter because either the AOS/Defence was complied within the time limits or the whole claim was satisfied before judgment was entered.
What is another consideration that must be considered for setting aside/varying DJ?
Whether the application has been made promptly. In particular, look at the length/reasons for delay, whether there is excessive delay, court may still set aside/vary if there are a) allegations of fraud or serious conflict of evidence or b) where the issues and facts are important, c) it is in the interests of justice.
What kind of duty is making an application prompt?
It is a personal duty - cannot blame representatives.
What does “reason prospect” mean?
That it is more than arguable - it has a real prospect of successfully defending the claim - burden of proof is on D to show this.
What must the court not do when looking at “real prospect” of success?
No mini trial.
What if the claimant is not present when deciding on a DJ?
Court will take into consideration whether the C has notice of hearing.
What cannot the D rely on for an excuse for a DJ?
D cannot rely on alleged technical failures by the C in an application to set aside DJ.
Can the D challenge an DJ?
No, but they can appeal.
What is considered “some other good reason”?
Court has broad discretion over what this means e.g failure to serve response pack, wrongfully led to believe claim not being pursued, unnecessary aggressive conduct.
What if a new party wants to be added to proceedings of DJ?
A DJ does not stop another non-party being added - if directly affected by DJ, may apply to have set aside e.g insurer.
What are the three stages of Denton to apply to assess setting aside a DJ?
- Identify the seriousness and significance of non-compliance, 2. Consider why the breach occurred, 3. Evaluate the circumstances of the case
How would you approach whether a DJ should be implemented?
- Assess specific requirements of MAY rules first (D has real prospect of defending claim, some other good reason, D should defend claim). 2.Apply Denton (1. Identify the seriousness and significance of non-compliance, 2. Consider why the breach occurred, 3. Evaluate the circumstances of the case ). 3. Enforce compliance with rules.
Where will the application be sent?
Depending on the circumstances: if it is for a specified amount and it was started in the CNBC, it will be sent to a preferred hearing centre. If judgement not obtained at home court/claim has not been transferred to home court and the D is an individual, the relevant court will send an application to their home court.
What is a summary judgement?
Enable the court to dispose of claims/issues without the need for full trial.
Who can apply for summary judgement?
C or D.
What are the benefits of a summary judgement?
Saves costs and time, furthers overriding objective - resources/disposal of issues.
How to make an application for summary judgement?
Application notice, draft order, evidence, fee.
What must notice of hearing be for a summary judgement?
At least 14 days before hearing.
In what type of proceedings are summary judgements available?
Any type of proceedings except for where possession of residential premises/against mortgagor/tenant.
What are the grounds for summary judgement?
C/D has no real prospect on succeeding on claim/defence or there is no other compelling reason why the case should be disposed of at trial.
What does “no real prospect of succeeding” mean in summary judgement?
Realistic and NOT fanciful, C must have material to support the case to enable the court to draw inferences.
What must the court not do when deciding a summary judgement?
Conduct a mini trial - it should only assess the merits of the case.
What must the court take into account when deciding a summary judgement?
Evidence put forward.
Who has a right to trial by jury instead of a summary judgement?
Libel, slander, false imprisonment.
What if there is evidence which is yet to be disclosed when deciding a summary judgement?
Court should ask whether there are reasonable grounds to believe that the disclosure of evidence will significantly affect the prospects of success and meet the real prospect test.
What if there is expert evidence when deciding a summary judgement?
Usually inappropriate.
What is the general demeanour of summary judgements?
The simpler the case, the more likely it will be granted.
Who is the burden of proof on in summary judgement?
Applicant must prove the respondent has no real prospect of success and no trial is necessary. After this, the burden shifts to vice versa.
When will summary judgement be refused?
If there is compelling reasons to exists for the case to go to trial i.e complex corporate trials with counterclaims, allegations of bad faith, issues of public interest
What may prevent a summary judgement being obtained?
If the defendant intends to raise a set off/counterclaim if this raises triable issues or has a real prospect of success.
If a defendant raises a set off/counterclaim, can a summary judgement be obtained?
No, unless the claimant’s claim exceeds the counterclaim and a partial summary judgement may be granted.
What if goods/services are paid via cheque/bill?
C is entitled to summary judgement.
When can the applicant apply for a summary judgement?
Only when D has filed AOS/Defence unless court gives permission.
What is the timing of notice to be given for a summary judgement?
14 days notice of the date fixed for hearing.
What must the application notice state for a summary judgement?
It must identify the documents relied on, attach any written evidence, state the conditions e.g no real prospect of succeeding/no compelling reason.
When should the application notice be served?
Not less than 4 days before hearing.
If the respondent wishes to rely on written evidence, what should they do?
File and serve 7 days before hearing.
If an applicant wishes to rely on written evidence for a reply to R, what should they do?
File and serve this evidence at least 3 days before hearing.
When should parties file and exchange statements of costs?
Not less than 24 hours before hearing.
What powers does the court have when determining a summary judgement?
It may give powers as to directions, filling and service of defence, further directions about management of the case, and attach orders subject to conditions.
What orders are available to court when dealing with summary judgement?
Judgment on claim on specific issue, striking out/dismissing claim, dismissing application or conditional order.
What can the court grant if a summary judgement is successful?
Remedies such as damages, declaratory relief or combo.
What happens if there is a counterclaim involved?
Enforcement may be stayed until it is resolved or the C can seek enforcement after paying the difference if the claim exceeds counterclaim.
When will the court dismiss a summary judgement?
If it is not satisfied that the R has a real prospect of success or reason for trial.
What kind of conditional order be imposed for a summary judgment?
It may be imposed if the court believes that the claim/defence could succeed but is unlikely to do so. The order may require parties to take certain steps or pay sum to court (failiure may lead to strike out).
If a party has to pay a sum to court as part of a condition order, why is this?
Because when an order is made to court, it usually takes form as security in respect of a weak defense.
What are the criteria the court must consider when ordering a conditional order for payment for summary judgement?
1) Court must not imposed if it cannot be complied with, 2) burden on D to establish they would struggle to comply, 3) in order to dismiss burden, D must show they do not have access to necessary funds, 4) D is not required to adduce evidence unless prior notice given.
Can an order be made for costs?
Yes, fixed costs for an assessment or summary assessment.
If no mention of costs is made in summary judgement, will there be any costs payable?
No, neither party is entitled to costs related to that order.
What if a party does not attend a summary judgement hearing?
Court can proceed in their absence and give judgement regardless or relist their application.
What if a party does not attend a summary judgement hearing and judgement is entered?
Party will have to apply for set aside or vary.
What happens next if a summary judgement is dismissed?
Court will give case management directions.
