Wording for Tests

Question 1

What is the test for setting aside a default judgment under the discretionary grounds?

E.g., where judgment was correctly entered, the court may set aside judgment…

Answer 1

Reasons the court may exercise its discretion:
- The defendant has a real prospect of successfully defending the claim; OR
- It appears to the court that there is some other good reason why judgment should be set aside

Key word: “OR”

Question 2

What are the grounds for summary judgment?

Answer 2

The claimant has no real prospect of succeeding; or the defendant has no real prospect of successfully defending the claim

AND

There is no other compelling reason why the case or issue should be disposed of at trial

Key word = “and” - need to show both for summary judgment

Question 3

What does ‘no real prospect’ mean in the context of summary judgment grounds?

Answer 3

It means the position is fanciful, imaginary or false

To defeat the application, the respondent only needs to show some chance its case will succeed even if it is improbable.

Question 4

What is the test for whether the court will grant permission to appeal?

Answer 4

The appeal would have a real prospect of success OR there is some other compelling reason for the appeal to be heard

Question 5

What is the test for a freezing injunction?

Answer 5

The test for a freezing injunction is: whether there is a real risk of the defendant (dissipating assets), and it is appropriate to apply for a without notice hearing, given the risk of disposal if the other party had notice

Question 6

What will the court order following an application for summary judgment where the court considers the claim should proceed to trial?

E.g., claimant makes application, but defendant is able to persuade the court that there is a more than fanciful chance of successfully defending the claim

Answer 6

Rather than dismiss the claim…

The court will make a conditional order, requiring the defendant to file a proper defence setting out their factual and legal position within 14 days of the date of the hearing

Question 7

What is the burden of proof when a defendant denies an allegation made by the claimant?

Answer 7

The burden lies with the claimant to prove the allegation on balance of probabilities

Question 8

What is the effect of a defendant denying an allegation?

Answer 8

A denial has the effect that the claimant will have to prove the allegation (claimant bears burden of proof) on the balance of probabilities

• If D denies an allegation it must give reasons

Question 9

What is the effect of a defendant admitting an allegation?

Answer 9

The claimant does not have to bring any further evidence in support of it