Termination Before Trial Flashcards
Ways to terminate before trial (7)
Consent, settlement, discontinuance, judgment in default, summary judgment, striking out, judgment on admissions
If settlement has been reached during litigation-
A consent order will need to be prepared to record the terms of the settlement
What does a Tomlin order do?
Enables the parties to record terms of settlement which could not be ordered by the court
What does the Tomlin order itself state?
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
Part 38
Governs discontinuance of proceedings
Where a party has received an interim payment in relation to a claim, they may discontinue-
Only if the defendant who made the interim payment consents in writing or the court gives permission
When does discontinuance takes effect?
On the date on which notice of discontinuance is served
If a claim is discontinued, who bears the responsibility for costs?
Claimant up to the date of discontinuance on a standard basis
What does a default judgment do?
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
How can you obtain a default judgment on a counterclaim?
Only when the deadline to file a defence has expired as no AoS in counterclaims
If a claimant rather than the court serves the claim form, default judgment cannot be entered-
Until a certificate of service is filed
In what circumstances is a request for a judgment in default relevant?
Specific amount of money, delivery of goods, sum of money to be determined by the court
Is a fee required with requests for a judgment in default?
No
Is a fee payable in case of applications for judgment in default?
Yes, the usual application fee
Part 13
Sets out rules for setting aside a default judgment
The court must set aside a default judgment when-
The defendant can show that the default judgment was wrongly entered by the claimant
Grounds where the default judgment has been wrongly entered (4)
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
The court may set aside a default judgment when the defendant-
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
What documents must the defendant submit under r13.2?
A chronology or the facts that bring the application under the provisions of r13.2
Why is it worth seeking consent of the other party in r13.2?
Because if such consent is obtained, it is almost certain that the court will then consider the application on paper
What will the evidence submitted with an application under r13.3 have to cover?
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
The application to set aside a default judgment will automatically be transferred to the defendant’s home court when-
The claim is for a specified sum and the defendant is an individual
Who are summary judgments available to?
Both claimants and defendants
When is a summary judgment used?
When an opponent’s case shows no reasonable prospects of success
Part 24
Deals with summary judgments
Can an application to strike out and for a summary judgment be made at the same time?
Yes
When can a summary judgment be granted?
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
When can an application for a summary judgment be made?
After service of PofC and AoS/defence (if on AoS defence can be filed after hearing)
If the claimant has failed to comply with any PAP, an application for a summary judgment will not be consider until-
After the defence has been filed or the time for doing so has expired
Evidence in summary judgments deadline
14 to oppose, 7 to oppose opposition, 3 in response
In all but most straightforward summary judgment applications-
Skeleton arguments and court bundles should be prepared
Except for granting/dismissing a summary judgment application, what other orders can the court make?
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
R3.4(2)
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
If a party fails to pay a fee-
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
Grounds for striking out (4)
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
Partco Group Ltd v Wragg 2002
Striking out is appropriate where a claim is unwinnable or where it does not raise a valid claim or defence
Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners 2007
A request for further information may be a more proportionate method to striking out
PD23A
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
When is it possible to obtain a judgment on admissions?
When the defendant admits all facts in issue in writing
Under r14.1A even if there is an admission-
The court may grant permission to withdraw it
Loveridge v Healey 2004
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
