4b. Disputes Advocacy Applications

Question 1

What are the most likely applications you would have to make in the disputes advocacy assessment?

Answer 1

• Summary judgment
• Set aside default judgment
• Interim payment
• Interim injunction
• Relief from sanctions
• Security for costs
• Strike out

All are discretionary except if default judgment is wrongly entered

Question 2

If you cannot remember the test for the application you are asked to make, what can you fall back on?

Answer 2

Submit that what you are seeking is in line with the overriding objective and the need to conduct proceedings efficiently and at proportionate cost

Question 3

For the applications where you have done something wrong, e.g. set aside default judgment and relief from sanctions, what should you do at the beginning of your substantive submissions?

Answer 3

Acknowledge the failure, e.g. not responding on time, and apologise to the court

You are an officer of the court, and it is expected you will expressly acknowledge the failure to comply with court directions

Question 4

Summary judgment

What is the test for summary judgment?

Is the court’s power mandatory or discretionary?

Answer 4

• Claim/defence has no real prospect of success, and
• No other compelling reason for the matter to proceed to trial

Discretionary

Question 5

Summary judgment

What does the compelling reason limb refer to?

Answer 5

Whether the court has all the information it needs to make a decision on the merits of the underlying claim

If it does, then there is no reason to waste the court’s time at trial if it can make the call now

Question 6

Default judgment

When is an order setting aside default judgment mandatory for the court to grant?

Answer 6

If the judgment in default was wrongly entered, e.g. the time for defendant to respond had not yet expired

Question 7

Default judgment

In all other cases, what must the defendant show to have default jugment set aside?

Answer 7

• Real prospect of successfully defending the claim (i.e. a viable defence), or
• A good reason why the default judgment should be set aside and the defendant be allowed to defend the claim

A rewording of the summary judgment test, but only one of the options is needed although the defendant should try to satisfy both

Question 8

Interim payment

What must have occurred before the claimant can apply for an interim payment?

Answer 8

Defendant must have filed acknowledgment of service or a defence

Question 9

Interim payment

What must the applicant for an interim payment include in their application?

Answer 9

1. Explain what the payment will be used for
2. Request a specific sum
3. Show the sum is a reasonable proportion of the likely damages
4. Consider contributory negligence, etc.

Question 10

Interim payment

Additionally, one of what three conditions must be satisifed in an application for interim payment?

Answer 10

• Defendant admits liability
• If claim went to trial, claimant would be awarded a substantial sum (even if multiple defendants and application is only made against one - must be insured in this case)
• Claimant has already obtained judgment

Question 11

Interim injunction

What three things must be shown in application for interim injunction?

Answer 11

• Serious question to be tried
• Damages would not be an adequate remedy, and
• Balance of convenience favours an injunction

Consider Overriding Objective

Question 12

Interim injunction

What can an applicant offer to support an application for interim injunction?

What is this?

Answer 12

An undertaking in damages

The applicant promises to compensate the other side if it turns out that the injunction should not have been granted

Question 13

Relief from sanctions

What is the three stage test applied when seeking relief from sanctions?

Answer 13

1. Seriousness of the breach
   if serious:
2. Reason for the breach
3. Consider all circumstances to deal with case justly

Consider Overriding Objective

Question 14

Security for costs

What are four of the grounds, one or more of which must be satisfied when applying for a security for costs order?

Only whom can apply for security for costs?

Answer 14

Claimant:
* Resident outside the jurisdiction
* Corporate body, and reason to believe they will be unable to pay defendant’s costs
* Changed address, failed to provide address, or gave incorrect address with a view to evading consequences of litigation
* Took steps re: their assets that would make it difficult to enforce an order for costs

Defendant, because claimant is free to discontinue proceedings at any time

Question 15

Strike out

One of what three things must be shown when applying to strike out the other party’s case?

Answer 15

• Claim/defence discloses no reasonable grounds for bringing/defending the claim, respectively
• Claim/defence is an abuse of process, or
• Other failure to comply with a court order or rule

Question 16

Unless order

What two things must you demonstrate when applying for an unless order?

Answer 16

Show how:
* Other party is in breach of an order you have complied with
* It is in the interest of the overriding objective

Question 17

Track allocation

What are the three things to show in an application for track allocation?

Answer 17

• Set out the facts
• Apply the facts to the track-allocation factors, e.g. value, complexity
• Conclude with a track request

Question 18

Adjournment

When must an application for an adjournment be made?

Answer 18

Promptly

Applicant must show how they acted promptly

Question 19

Adjournment

As well as acting promptly, what other two things must be shown in an application for an adjournment/stay?

Answer 19

• Why the adjourment/stay is necessary
• Why it is in the interests of the overriding objective