Tests for Advocacy DR Flashcards
Summary Judgement
CPR 24.3
a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
b) there is no other compelling reason why the case or issue should be disposed of at a trial.
Default Judgment
CPR 12
Defendant:
a) has failed to file an acknowledgment of service; or
b) has failed to file a defence or any document intended to be a defence.
Set Aside Default Judgment: Court MUST set aside
CPR 13.2
a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
b) for default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or
c) the whole claim was satisfied before judgment was entered.
Exp: The Defendant either did acknowledge service, file a defence or Defendant has applied for strike out or summary judgment
Set Aside Default Judgment: Court MAY set aside
CPR 13.3
a) the defendant has a real prospect of successfully defending the claim; or
b) it appears to the court that there is some other good reason why:
i. the judgment should be set aside or varied; or
ii. the defendant should be allowed to defend the claim.
2) In considering whether to set aside the court must consider if the application was made promptly
Strike Out
CPR 3.4
The court may strike out whole or part of a statement of case which discloses:
3.4(2)(a) no reasonable grounds for bringing a claim; or
3.4(2)(b) is an abuse of the process of the court or otherwise likely to obstruct the just disposal of proceedings
Interim Payment
CPR 25.7 Any of following:
a) the defendant has admitted liability to pay damages;
b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money;
c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant
Interim Injunction
PD 25A
Just and convenient
1) Is there a serious question to be tried?
- Must be a pre-existing cause of action (it’s a remedy)
2) Would damages be an adequate remedy for a party injured by the courts grant of, or failure to grant, an injunction?
- Does the respondent have the means? cannot be quantified?
3) Where does the balance of convenience lie?
Relief from Sanctions
Dentons Test
1. Whether serious or significant
* Did not imperil set hearing dates
* Not disrupted future conduct of litigation
* Not caused delay that will impact Claimant’s ability to present case in evidence quality/availability will have decreased.
2. Why default occurred?
3. All circumstances
4. Was the application made promptly
5. Overriding objective
Denton Test: What factors are considered?
Did it imperil hearing date?
Disruption of future conduct of litigation?
Proportionate?
Prompt timing?
Cost Hearing: What will happen?
CPR 3.16
a) if costs are reasonable and proportionate
b) Parties will present their budgets and outline the estimated costs of litigation
c) Case summary may be needed by the court
d) negotiation may be needed
Case Management Hearing
a) Submissions will be made by advocates
b) Case summary and application may be used (chronology of claim, factual issues and nature of evidence)
c) Budgets and budget discussion report considered
d) Further questions likely to be asked by the court
Security for Costs
CPR 25.12/13
Made by Defendant
- The court may make an order for security for costs under rule 25.12 if –
a) it is just
(i) one or more of the conditions applies
a) the claimant is –
I. resident out of the jurisdiction; but
II. not in a State bound by Hague Convention,
b) the claimant is a company or and there is reason to believe that it will be unable to pay costs
c) the claimant has changed his address with a view to evading the consequences;
d) the claimant failed to give his address /or gave an incorrect address;
e) the claimant is acting as a nominal claimant, and there is reason to believe that he will be unable to pay the defendant’s costs if ordered to do so;
f) the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.
When is the American Cynanamid Test used?
All interim orders
freeze order, search order, Mand, prohibitory
American Cynanamid Test
1) serious question to be tried?
2) would damages be an adequate remedy?
3) where does the balance of convenience lie?
How much would the court order (£) in an interim order
no more than a reasonable proportion of the final judgment amount
When would you need to give full and frank disclosure?
Interim injunction application without notice
Key points for full and Frank disclosure
highlight to the court any matters of fact or law which are relevant to the application
material facts - including those adverse to the applicant
Advocacy for Specific Disclosure
a) Disclose documents specified
b) Carry out a search to the extent stated in the order
c) Disclose any documents located as a result of that search
Considered by court:
- All circumstances
- Overriding objective
- Any obligations complied with or not (if party ‘failed adequately to comply with obligations imposed by order for discourse)
Legal Advice Privelidge
- Confidential communicating between client and lawyer
- was prepared for the dominant purpose of legal advice
- Attendance note = not privilege
- if it’s part of the overall communication related to legal advice, it’s still protected.
Litigation Privelige
- document must be confidential and created when legal action was reasonably expected.
- if a lawyer/client talks to a witness about a case, that communication can be protected.
- Must be a real likelihood of litigation not a mere possibility
Without prejudice privelige
- Document whose genuine purpose is to settle.
- Need not be marked ‘without prejudice’ for privilege to reply
Waiver of Privlige
- Where the party will allow the inspection of a privileged document if it considers the document will help the case
- Cannot cherry pick- the whole document will waiver privilege
- Could lead to waiver of other documents (eg if the documents are on the same subject matter)
Adding / substituting a party
any number of claimants can join (except where limitation has expired)
test for in limitation period = amendment is desirable
costs / OO considered
add as a claimant - must have their consent
adding / substitute parties post limitation
limitation still in effect when case started
change is necessary to proceed (death, mistake, cant carry on otherwise)
