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.
Who bears the burden of proof for summary judgment?
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.
Can the court give summary judgment against a claim in any type of proceedings?
Yes.
can the court give summary judgment against a defendant in any type of proceedings?
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.
Can a claimant filed for summary judgment before D has filed an AoS or defence?
No, unless the court gives permission or a practice direction provides so.
How much notice must a respondent be given that a summary judgment hearing is fixed/
At least 14 days’ notice of the date fixed.
Can a defendant apply for summary judgment prior to filing an AoS/defence?
Yes. D can file for summary judgment whenever during proceedings.
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?
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.
When are conditional orders to be made?
Where it appears that the claim, defence or issue may ucceed but it is improbably that it will do so.
An application for summary judgment can be based on:
A point of law;
Evidence which can reasonably be expected to be available at trial;
A combination of these.
On an application under Part 24 (summary judgment), what orders can the court make?
Judgment on claim;
Striking out of the claim;
Dismissal of application;
Conditional order
What are two examples of conditional orders?
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.
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?
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.,
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 court can strike out the claim on their own motion.
Can parties agree amongst themselves to change the date of a case management confernece?
No. The date can only be changed by applying to court.
Do dates of exchange for witness/expert evidence require court applications?
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.
Are there more types of case in which claimants can apply for summary judgment than there are for defendants?
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’.
Can a claimant apply for summary judgment where the defendant has not filed an acknowledgement of service, or a defence?
No.
Can a claimant apply for summary judgment where the defendant has not consented?
Yes
Can a claimant apply for summary judgment where the court has not given permission?
Yes
Can a claimant apply for summary judgment where the defendant has not filed an allocation questionnaire.
Yes.
When can the defendant apply for summary judgment in their favour?
At any time after the proceedings have commenced. No requirement to have filed an acknowledgement of service or a defence.
Does an order for summary judgment mean that litigation will always come to an early halt and not progress further?
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.
When should a party apply for summary judgment?
Where they think the opponent lacks evidence of sufficient quality and quantity to grant a reasonable prospect of success.
When should a party apply for strike out?
Where they think there is no reasonable ground for bringing/defending the claim. A matter of content.
