Termination Before Trial

Question 1

Ways to terminate before trial (7)

Answer 1

Consent, settlement, discontinuance, judgment in default, summary judgment, striking out, judgment on admissions

Question 2

If settlement has been reached during litigation-

Answer 2

A consent order will need to be prepared to record the terms of the settlement

Question 3

What does a Tomlin order do?

Answer 3

Enables the parties to record terms of settlement which could not be ordered by the court

Question 4

What does the Tomlin order itself state?

Answer 4

That the parties have agreed terms of settlement and the proceedings themselves are stayed on the basis of terms in the schedule - if not complied with, the innocent party can apply within the same proceedings to enforce the terms

Question 5

Part 38

Answer 5

Governs discontinuance of proceedings

Question 6

Where a party has received an interim payment in relation to a claim, they may discontinue-

Answer 6

Only if the defendant who made the interim payment consents in writing or the court gives permission

Question 7

When does discontinuance takes effect?

Answer 7

On the date on which notice of discontinuance is served

Question 8

If a claim is discontinued, who bears the responsibility for costs?

Answer 8

Claimant up to the date of discontinuance on a standard basis

Question 9

What does a default judgment do?

Answer 9

It enables the claimant to obtain an early determination of their action without a trial where the defendant fails to file an AoS within the time limits prescribed by the court

Question 10

How can you obtain a default judgment on a counterclaim?

Answer 10

Only when the deadline to file a defence has expired as no AoS in counterclaims

Question 11

If a claimant rather than the court serves the claim form, default judgment cannot be entered-

Answer 11

Until a certificate of service is filed

Question 12

In what circumstances is a request for a judgment in default relevant?

Answer 12

Specific amount of money, delivery of goods, sum of money to be determined by the court

Question 13

Is a fee required with requests for a judgment in default?

Answer 13

No

Question 14

Is a fee payable in case of applications for judgment in default?

Answer 14

Yes, the usual application fee

Question 15

Part 13

Answer 15

Sets out rules for setting aside a default judgment

Question 16

The court must set aside a default judgment when-

Answer 16

The defendant can show that the default judgment was wrongly entered by the claimant

Question 17

Grounds where the default judgment has been wrongly entered (4)

Answer 17

Entered too early; made after the defendant has made an application to strike out the claim; entered even though the whole claim has been paid or settled; entered after the defendant had filed an admission but has made a request for time to pay

Question 18

The court may set aside a default judgment when the defendant-

Answer 18

Acts promptly and shows that they have a real prospect of successfully defending the claim or establish some other good reason why the judgment should be set aside/the defendant permitted to defend the claim

Question 19

What documents must the defendant submit under r13.2?

Answer 19

A chronology or the facts that bring the application under the provisions of r13.2

Question 20

Why is it worth seeking consent of the other party in r13.2?

Answer 20

Because if such consent is obtained, it is almost certain that the court will then consider the application on paper

Question 21

What will the evidence submitted with an application under r13.3 have to cover?

Answer 21

Address the court’s discretion, the prospects of success of the defence/other good reasons as well as that the defendant has acted promptly in making the application and has valid and excusable reasons for any delay

Question 22

The application to set aside a default judgment will automatically be transferred to the defendant’s home court when-

Answer 22

The claim is for a specified sum and the defendant is an individual

Question 23

Who are summary judgments available to?

Answer 23

Both claimants and defendants

Question 24

When is a summary judgment used?

Answer 24

When an opponent’s case shows no reasonable prospects of success

Question 25

Part 24

Answer 25

Deals with summary judgments

Question 26

Can an application to strike out and for a summary judgment be made at the same time?

Answer 26

Yes

Question 27

When can a summary judgment be granted?

Answer 27

Where the claimant/defendant has no reasonable prospect of succeeding on/defending the claim or issue and in respect of either there is no other compelling reason why the case could be disposed of at trial

Question 28

When can an application for a summary judgment be made?

Answer 28

After service of PofC and AoS/defence (if on AoS defence can be filed after hearing)

Question 29

If the claimant has failed to comply with any PAP, an application for a summary judgment will not be consider until-

Answer 29

After the defence has been filed or the time for doing so has expired

Question 30

Evidence in summary judgments deadline

Answer 30

14 to oppose, 7 to oppose opposition, 3 in response

Question 31

In all but most straightforward summary judgment applications-

Answer 31

Skeleton arguments and court bundles should be prepared

Question 32

Except for granting/dismissing a summary judgment application, what other orders can the court make?

Answer 32

A conditional one ordering the defendant to pay money/file defence within a specified time and the consequence of not complying with the condition may be that their right to defend will be struck out

Question 33

R3.4(2)

Answer 33

Gives the court the power to strike out a party’s statement of case if it discloses no reasonable grounds for bringing/defending the claim, the statement of case is an abuse of the court’s process or where there has been a failure to comply with a rule, PD or order

Question 34

If a party fails to pay a fee-

Answer 34

The court will serve a notice with a deadline to pay, if not complied with the claim will be struck out and the defaulting party will be liable for the costs which the other side has incurred unless ordered otherwise

Question 35

Grounds for striking out (4)

Answer 35

No reasonable cause of action; scandalous, frivolous or vexatious; might prejudice, embarrass or delay a fair trial; are an abuse of the process of the court

Question 36

Partco Group Ltd v Wragg 2002

Answer 36

Striking out is appropriate where a claim is unwinnable or where it does not raise a valid claim or defence

Question 37

Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners 2007

Answer 37

A request for further information may be a more proportionate method to striking out

Question 38

PD23A

Answer 38

A party wanting to make an application to strike out the other party’s statement of case under r3.4 must do so asap and if possible before the case is allocated

Question 39

When is it possible to obtain a judgment on admissions?

Answer 39

When the defendant admits all facts in issue in writing

Question 40

Under r14.1A even if there is an admission-

Answer 40

The court may grant permission to withdraw it

Question 41

Loveridge v Healey 2004

Answer 41

A defendant seeking to avoid summary judgment being entered on an admission has to issue an application for permission to amend as otherwise the court is entitled to enter judgment on the unamended statement of case