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DR > Unit 6 - Tactical Applications and Settlement > Flashcards

Unit 6 - Tactical Applications and Settlement Flashcards

1
Q

What is a summary judgement?

A

It’s the process when the court can decide the claim or certain issue without going into a full trial.

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2
Q

What’s the CPR for a summary judgement?

A

CPR 25

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3
Q

Is a summary judgement different from a default judgement?

A

Yes

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4
Q

What are the grounds for a summary judgement?

A

CPR 24.2

  1. D has no real prospect of succeeding on or defending the claim.
  2. No other compelling reason to try the case or issue.
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5
Q

What’s the aim of a summary judgement?

A

To make a quick determination of the case - save costs and avoid the whole long process of litigation.

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6
Q

What is C’s argument under the first ground in a summary judgement application?

A

D has no real prospect of succeeding or defending the claim at a point of law or the evidence may be lacking, etc or both.

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7
Q

What can D do to prevent a summary judgement from occurring under the first ground?

A

D would need to have more than an arguable case.

Their case has to be real rather than having a chance of winning - Swain v Hillman 1999

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8
Q

What may be the other compelling reasons (there’s 6) why a summary judgement can be obtained?

A
  1. D need to investigate further on the claim
  2. Difference in facts
  3. One party may hold all of the factual cards - one party may possess a majority of the evidence.
  4. Applicant’s conduct might be questionable - they are dishonest or devious (Miles v Bull)
  5. Case may be complex
  6. Case may be narrative/novel to the point of law
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9
Q

What should the application for the summary judgement include?

A

Application notice - form N244
Any supporting evidence
Draft order
Fee - £255

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10
Q

when can C apply for a summary judgement to occur during the litigation process?

A

After D has filed an AoS or defence except when court has given permission.

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11
Q

When can D apply for a summary judgement during the litigation process?

A

At any point of time.

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12
Q

What’s the CPR for an interim payment?

A

CPR 25

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13
Q

What’s an interim payment?

A

It’s when D is liable to pay and an advance payment is made due to damages, debt or other sum excluding costs.

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14
Q

When can C make an application for an interim payment?

A

After time for D’s AoS expires

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15
Q

What should C first do before making an application for an interim payment?

A

Liaise or negotiate with D or D’s insurance company

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16
Q

Can C make more than one application for an interim payment?

A

Yes

17
Q

What else should be served alongside the interim payment application?

A

Evidence of:

  1. amount of payment they are demanding
  2. items or matters
  3. Likely amount of the final judgement
  4. Reasons they believe the grounds for the interim judgement has been satisfied
  5. Any other matters
18
Q

If D or respondent wants to rely on written evidence on the interim application, how long should this be served before the hearing?

A

7 days

19
Q

If the applicant (C) wants to rely on evidence, how many days before the hearing should this be served?

A

3 days before the hearing

20
Q

What are the grounds that the C/Applicant should prove to have a successful interim payment application?

A
  1. D has admitted to being liable to pay damages
  2. C got judgement for their damages to be assessed
  3. Court is satisfied that if the case went to a full trial, C would obtain a substantial amount of money from D.
  4. 2+ Defendants - all D must be insured, number 3 or D is a public body.
21
Q

If C is successful on their application for an interim payment, what options does the court have discretion to? there’s 2

A
  1. Whether to make an order at all

2. Amount of the order, if they want to make an order.

22
Q

What’s the purpose of security for costs?

A

D can ask the court for their discretion and order the C to provide security for costs if the D is likely to defeat the claim and would be awarded.

23
Q

What’s the CPR for security for costs?

A

25.12

24
Q

What are the 5 grounds that D must prove to be able to obtain security for costs?

A
  1. C is based outside of the EU (25.13(2)(a))
  2. C is a company and is unable to pay for D’s cost (25.13(2)(c)
  3. C has made the enforcement to be difficult
  4. C is evasive (ie changing their address) 25.13(2)(d,e and g).
  5. C is nominal - suing on benefit for someone else 25.13(2)(f).
25
Q

What are the factors relevant to court’s discretion?

A
  1. Strength of D’s claim and defence?
  2. C’s ability to provide security
  3. Causes for C’s financial bankruptcy/impecuniosity
  4. Timing of the application - ASAP
26
Q

Can C make an application for security for costs?

A

Under 25.12 - No provision provided so no.

27
Q

What’s the CPR for discontinuing the claim?

A

38

28
Q

How can a claim be discontinued?

A

C can serve a note of discontinuance to all parties and filing it to court.

29
Q

What’s a Tomlin Order?

A

It’s a contractual obligation between the parties which states their agreed terms. It is a form of consent order and it’s a stay a claim on the agreed terms. It is signed by both parties and it is a recorded agreement.

30
Q

What are the formalities of a Tomlin Order?

A

CPR 40.6(7):

  • Terms must be expressed in the agreement that were agreed by both parties.
  • State “By Consent”
  • Signed by both legal representatives
31
Q

When is a Tomlin Order usually used?

A

CPR 40.6(7) - When the parties want their terms of the agreement to be confidential - this would normally be outlined at the schedule of the Tomlin order.

32
Q

What’s the structure of the Tomlin Order

A 
Para 3.5 PD40B
Should have:
Details of the court
Parties' full names
By Consent
Stay of proceedings
Payment out of court
Payment of costs
Signatures of the parties

Schedule:
Agreed terms
Payment of money

DR (6 decks)

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