Unit 9 - Strike out and Summary Judgment Flashcards
When the court makes an order, must it specify the consequences of failure?
No, but they may do so - see 3.1(3)(b).
How much can the the court order in costs for failure to comply?
Have regard to:
- the amount in dispute;
- the costs which the parties have/will incur.
Must the court have regard to the fact that a party is unrepresented when exercising case management poweres?
Yes.
How much notice must the court give a party likely to be affected by their proposed order?
At least 3 days’ notice of the hearing.
On what grounds can the court strike out a statement of case?
If it appears to the court that:
- SoC discloses no reasonable grounds for bringing or defending the claim;
- SoC is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;
- There has been a failure to comply with a rule, PD or court order.
If the court strikes out a SoC and considers the claim to be totally without merit, what must the court do?
Record that fact on their order;
Consider whether it is appropriate to make a civil restraint order.
What relevance to the Denton principles have for applications to strike-out?
The questions are of relevance, but the test for strike out is materially different.
Can strike out orders be made on the court’s own initiative?
Yes.
Is it appropriate to strike out claims in an area of developing jurisprudence?
No!
Should the striking out of a claim be the first option?
No, last option. If an abuse of process can be addressed by a less draconian course, it should be.
What is res judicata?
A term used to describe a number of different legal principles including estoppels and preventing a party raising an issue in subsequent proceedings which they should have raised earlier on.
What are unless orders?
An order stating that unless P does X by a particular date, their claim will be struck out.
What is the inherent jurisdiction to strike out?
A power of the court to strike out claims which is in addition to its powers under r3.4
What are the differences between strike-out and summary judgment?
SO applies to non-compliance with rules, practice directions and court orders;
Summary judgment applies to summary disposal of issues including preliminary issues;
Summary judgment has various procedural requirements which do not apply to SO;
SO applies to all proceedings.
Where a rule, practice direction or courts requires P to do X by Y and specifies what happens if failure, can the parties extend the time for doing X?
Only via prior written agreement, up to 28 days, so long as it doesn’t put a hearing date at risk.
The court can also order otherwise.
What are the grounds for granting summary judgment?
Where the court considers that C or D has no real prospect of success AND there is no other compelling reason why the case or issue should be disposed of at a trial.