Unit 9 - Strike out and Summary Judgment Flashcards

1
Q

When the court makes an order, must it specify the consequences of failure?

A

No, but they may do so - see 3.1(3)(b).

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2
Q

How much can the the court order in costs for failure to comply?

A

Have regard to:

  • the amount in dispute;
  • the costs which the parties have/will incur.
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3
Q

Must the court have regard to the fact that a party is unrepresented when exercising case management poweres?

A

Yes.

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4
Q

How much notice must the court give a party likely to be affected by their proposed order?

A

At least 3 days’ notice of the hearing.

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5
Q

On what grounds can the court strike out a statement of case?

A

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.
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6
Q

If the court strikes out a SoC and considers the claim to be totally without merit, what must the court do?

A

Record that fact on their order;

Consider whether it is appropriate to make a civil restraint order.

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7
Q

What relevance to the Denton principles have for applications to strike-out?

A

The questions are of relevance, but the test for strike out is materially different.

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8
Q

Can strike out orders be made on the court’s own initiative?

A

Yes.

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9
Q

Is it appropriate to strike out claims in an area of developing jurisprudence?

A

No!

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10
Q

Should the striking out of a claim be the first option?

A

No, last option. If an abuse of process can be addressed by a less draconian course, it should be.

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11
Q

What is res judicata?

A

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.

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12
Q

What are unless orders?

A

An order stating that unless P does X by a particular date, their claim will be struck out.

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13
Q

What is the inherent jurisdiction to strike out?

A

A power of the court to strike out claims which is in addition to its powers under r3.4

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14
Q

What are the differences between strike-out and summary judgment?

A

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.

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15
Q

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?

A

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.

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16
Q

What are the grounds for granting summary judgment?

A

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.

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17
Q

Who bears the burden of proof for summary judgment?

A

The applicant.

Once A adduces credible evidence in support of their application, R bears evidential burden of proving some real propect of success or some other reason for trial.

18
Q

Can the court give summary judgment against a claim in any type of proceedings?

A

Yes.

19
Q

can the court give summary judgment against a defendant in any type of proceedings?

A

Yes, except:

  • Proceedings for possession of residential premises against a mortgagor or a tenant whose tenancy is protected under Rent Act/Housing Act
  • Proceedings for an admiralty claim in rem.
20
Q

Can a claimant filed for summary judgment before D has filed an AoS or defence?

A

No, unless the court gives permission or a practice direction provides so.

21
Q

How much notice must a respondent be given that a summary judgment hearing is fixed/

A

At least 14 days’ notice of the date fixed.

22
Q

Can a defendant apply for summary judgment prior to filing an AoS/defence?

A

Yes. D can file for summary judgment whenever during proceedings.

23
Q

What must a respondent do if they wish to rely on written evidence at a summary judgment hearing?

What if the applicant wishes to rely on written evidence in reply?

A

File the written evidence

Serve copies on every party

Do both at least 7 days before SJ hearing.

The applicant must reply at least 3 days before SJ hearing.

24
Q

When are conditional orders to be made?

A

Where it appears that the claim, defence or issue may ucceed but it is improbably that it will do so.

25
Q

An application for summary judgment can be based on:

A

A point of law;

Evidence which can reasonably be expected to be available at trial;

A combination of these.

26
Q

On an application under Part 24 (summary judgment), what orders can the court make?

A

Judgment on claim;
Striking out of the claim;
Dismissal of application;
Conditional order

27
Q

What are two examples of conditional orders?

A

Orders which require a party to:

  • pay a sum of money into court; or
  • take a step in relation to his claim/defence, and provides that the party’s claim will be dismissed/struck out if he does not comply.
28
Q

Can a claim be struck out if a party in a multi-track case fails to return a pre-trial checklist by the stipulated date, and has not applied for an alteration of that date?

A

Possibly.

If neither party files the checklist, an ‘unless’ order will be made. Failure to comply with that order will lead to a striking out of the statements of case.,

29
Q

Can a claim be struck out if a party in a multi-track case fails to attend a case management conference without first applying for an alteration of the date?

A

A court can strike out the claim on their own motion.

30
Q

Can parties agree amongst themselves to change the date of a case management confernece?

A

No. The date can only be changed by applying to court.

31
Q

Do dates of exchange for witness/expert evidence require court applications?

A

No - thees can be altered by written agreements by the parties under CPR 2.11

However, this is not allowed if changng the dates impacts on any dates for hearings or pre-trial checklists.

32
Q

Are there more types of case in which claimants can apply for summary judgment than there are for defendants?

A

No. A defendant can get summary judgment in any type of proceedings, but claimants cannot get summary judgment for ‘possession of residential premises’ and ‘proceedings for admiralty in rem’.

33
Q

Can a claimant apply for summary judgment where the defendant has not filed an acknowledgement of service, or a defence?

A

No.

34
Q

Can a claimant apply for summary judgment where the defendant has not consented?

A

Yes

35
Q

Can a claimant apply for summary judgment where the court has not given permission?

A

Yes

36
Q

Can a claimant apply for summary judgment where the defendant has not filed an allocation questionnaire.

A

Yes.

37
Q

When can the defendant apply for summary judgment in their favour?

A

At any time after the proceedings have commenced. No requirement to have filed an acknowledgement of service or a defence.

38
Q

Does an order for summary judgment mean that litigation will always come to an early halt and not progress further?

A

No: this statement is too general.

Summary judgment can dispose with part of a claim, where the rest proceeds to trial;

The judge could also give case management directions as to how the litigation should progress;

Even if summary judgment is entered for the entire claim, there could be a counter-claim.

39
Q

When should a party apply for summary judgment?

A

Where they think the opponent lacks evidence of sufficient quality and quantity to grant a reasonable prospect of success.

40
Q

When should a party apply for strike out?

A

Where they think there is no reasonable ground for bringing/defending the claim. A matter of content.