advocacy

Question 1

Track Allocation – What factors does the court consider when allocating a case to a track?

Answer 1

The court considers nine specific factors under CPR 26.13:
• Need – Nature of remedy sought
• Importance – To persons beyond parties
• Number – Of parties involved
• Expense – Time and cost of resolution
• Complexity – Of facts/law/evidence
• Financial value – Excluding interest/costs
• Co-operation – Between the parties
• Views – Expressed by the parties
• Circumstances – Including vulnerability/resources
Mnemonic: NINE CFC CVs

Question 2

Default Judgment – What are the conditions under CPR 12?

Answer 2

Conditions:
• S – Failed to file Acknowledgement of Service
• A – Failed to acknowledge or serve defence
• D – No Defence filed
• E – Court can Enter judgment
• T – Time to respond has expired
Mnemonic: SADET

Question 3

Set Aside Default Judgment – Mandatory Grounds (CPR 13.2)

Answer 3

The court must set aside if:
• P – Defendant made Practice application
• A – Applied before judgment with valid reason
• R – Acknowledgement/Defence properly served
• S – Request made before judgment entered
Mnemonic: PARS

Question 4

Set Aside Default Judgment – Discretionary Grounds (CPR 13.3)

Answer 4

The court may set aside if:
• C – Conduct shows real prospect of success
• A – Application made promptly
• R – Real prospect of defending
• D – Defence or delay has good reason
• W – Writ explained if issued
Mnemonic: CARDW
Case Principle:
• Standard Bank v Agrinvest [2010] - Must show real prospect + prompt application

Question 5

Summary Judgment – What are the conditions under CPR 24?

Answer 5

Conditions:
• No real Prospect of success
• No Other compelling reason for trial
Mnemonic: PROP-DOG or No PCI
Case Principles:
• Swain v Hillman [2001] - Realistic, not fanciful
• Three Rivers v Bank of England [2001] - Consider future evidence
• ICI v TTE [2007] - Scrutinize evidence

Question 6

Strike Out (CPR 3.4) – What are the grounds?

Answer 6

• N – No reasonable grounds
• A – Abuse of process
• F – Failure to comply with rules/orders
Mnemonic: SCAN
Case Principles:
• Asturion v Alibrahim [2020] - Only for clear and obvious cases
• Della v Deane [2021] - Strike out only if plainly unsustainable

Question 7

Interim Injunction – What is the American Cyanamid test?

Answer 7

Serious issue to be tried
Damages an adequance remedy
Balance of convenience

• American Cyanamid v Ethicon [1975] - Least risk of injustice

Question 8

Freezing Injunction – What are the requirements?

Answer 8

• A – Assets at risk
• B – Evidence of dissipation
• A – Arguable case
• P – Proportionate, balance of convenience
• W – Without notice only if justified
Mnemonic: ABAPW
Case Principles:
• Mareva Compania [1975] - Prevent disposal to avoid judgment
• Ninemia Maritime [1983] - Good arguable case + real risk of dissipation

Question 9

What is the procedure for making a late evidence application?

Answer 9

CPR 23 application

CPR stands for Civil Procedure Rules, which govern civil court proceedings in England and Wales.

Question 10

What does CPR 3.1(2)(a) allow the court to do?

Answer 10

Extend or shorten the time for compliance with any rule, direction or order

This applies even if an application for extension is made after the time for compliance has expired.

Question 11

What happens if a witness statement or summary is not served within time according to CPR 32.10?

Answer 11

The witness may not be called to give oral evidence unless the court gives permission.

Question 12

According to CPR 35.13, what is the consequence of failing to disclose an expert’s report?

Answer 12

A party may not use it at trial or call the expert to give oral evidence unless the court gives permission.

Question 13

What does CPR 31.21 state about relying on undisclosed documents?

Answer 13

A party may not rely on any document which it fails to disclose or permit inspection unless the court gives permission.

Question 14

What must be demonstrated for late evidence permission to be granted?

Answer 14

Compelling grounds for pertinence and necessity, and exceptional circumstances justifying the earlier failure.

Question 15

What is the test for in-time applications for extension before the deadline?

Answer 15

Considered in the context of the overriding objective rather than relief from sanctions.

Question 16

What did the court hold in Kaneria v Kaneria regarding the relief from sanctions test?

Answer 16

It should not be applied to applications made before the deadline has expired.

Question 17

What test is commonly applied for retrospective extensions after the deadline?

Answer 17

Relief from sanctions test (see Denton and CPR 3.9 tests).

Question 18

In Greig v Stirling, how does the court address applications made after a time limit has expired?

Answer 18

It addresses the principles in CPR 3.9.

Question 19

What was the outcome in Al Hamadani v Al Khafaf regarding late witness evidence?

Answer 19

Relief from sanctions was granted despite the serious and significant failure to comply.

Question 20

What did the judge find in Coal Hunter v Regulas regarding the breach?

Answer 20

The breach was serious or significant, but the orderly litigation process was not threatened.

Question 21

What was allowed in Currie v Thornley regarding letters served after trial but before judgment?

Answer 21

The letters were admitted as evidence to allow resolution of all relevant issues.

Question 22

In Jones v Oven, what is the status of a new document that becomes available after filing directions?

Answer 22

It is not considered ‘late’, and it is a question of permission.

Question 23

What is the Denton test?

Answer 23

A structured approach for courts when considering relief from sanctions under CPR 3.9

Established in Denton v TH White [2014], it refines the stricter stance from Mitchell v News Group [2013].

Question 24

What is the first step of the Denton test?

Answer 24

Assess whether the breach is serious or significant

This involves evaluating procedural fairness and distinguishing between minor and major breaches.

Question 25

What does the second step of the Denton test involve?

Answer 25

Justifying the failure and determining if there was a valid reason or if the delay was avoidable ## Footnote External factors may be treated differently than mere inefficiency.

Question 26

What is the third step of the Denton test?

Answer 26

Considering all circumstances, including procedural efficiency and compliance ## Footnote Courts assess whether relief supports the overriding objective of fairness, efficiency, and justice.

Question 27

What mnemonic can help remember the Denton test?

Answer 27

RA DW PCD ## Footnote R: Reasoning, A: Analysis, D: Decision-making, W: Weighing up fairness, P: Proportionality, C: Compliance, D: Discretion.

Question 28

What does the case *Mitchell v News Group [2013]* emphasize?

Answer 28

Strict interpretation where compliance with rules is paramount ## Footnote This case set a precedent for the importance of procedural compliance.

Question 29

What flexibility does *Denton v TH White [2014]* introduce?

Answer 29

A balance between fairness and efficiency ## Footnote It allows for more discretion in considering relief from sanctions.

Question 30

What does *Greig v Stirling [2023]* reinforce?

Answer 30

Retrospective extensions must satisfy the Denton test ## Footnote This ensures consistency in applying the Denton principles.

Question 31

What should solicitors do to avoid sanctions?

Answer 31

Anticipate procedural risks and ensure timely compliance ## Footnote Proactive measures can prevent the need for relief from sanctions.

Question 32

What is crucial when applying for relief from sanctions?

Answer 32

Use structured reasoning based on Denton's three-stage test ## Footnote This structured approach aids in presenting a compelling case for relief.

Question 33

True or False: Courts prioritize procedural rules over access to justice.

Answer 33

False ## Footnote The Denton test emphasizes weighing proportionality to ensure access to justice.

Question 34

What does CPR 3.1(2)(a) state about the court's power?

Answer 34

The court has the power to extend or shorten the time for compliance with any rule, direction or order, even if an application for extension is made after the time for compliance has expired.

Question 35

What happens if a witness statement or summary is not served within time according to CPR 32.10?

Answer 35

The witness may not be called to give oral evidence unless the court gives permission.

Question 36

What does CPR 35.13 state about disclosing an expert's report?

Answer 36

A party who fails to disclose an expert’s report may not use it at the trial or call the expert to give oral evidence unless the court gives permission.

Question 37

What does CPR 31.21 say about relying on undisclosed documents?

Answer 37

A party may not rely on any document which it fails to disclose or permit inspection unless the court gives permission.

Question 38

What must be shown to permit the use of certain evidence?

Answer 38

There must be compelling grounds as to the pertinence and necessity of that evidence, and exceptional circumstances.

Question 39

What is the test for in-time applications for extension before a deadline?

Answer 39

Courts consider it in the context of the overriding objective rather than relief from sanctions. ## Footnote This is established in the case of Kaneria v Kaneria.

Question 40

In the case of Greig v Stirling, how does the court handle applications to extend time made after the deadline has expired?

Answer 40

The court applies the principles in CPR 3.9 when considering the application. ## Footnote This reflects the standard approach for retrospective extensions.

Question 41

What was the outcome of Al Hamadani v Al Khafaf regarding relief from sanctions?

Answer 41

The court granted relief despite the failure to comply being serious and significant, as the orderly process of litigation was not threatened. ## Footnote The application involved serving witness evidence 20 days after the deadline.

Question 42

In Coal Hunter v Regulas, what did the judge conclude regarding the breach?

Answer 42

The breach was serious or significant, and the default was due to C’s delay, but the evidence was necessary for just determination of the case. ## Footnote This case illustrates the balance between breach severity and the need for evidence.

Question 43

What did the court decide in Currie v Thornley about letters served after trial but before judgment?

Answer 43

The court allowed the letters to be admitted as evidence to dispose of all relevant issues in the interests of finality. ## Footnote This decision aimed to avoid re-litigating unresolved aspects.

Question 44

True or False: In Jones v Oven, a new document that becomes available after the filing and serving directions is considered 'late'.

Answer 44

False. ## Footnote The application was about permission, not relief from sanctions.

Question 45

What is the key consideration for applications made before the deadline has expired?

Answer 45

They should be considered in the context of the overriding objective. ## Footnote This principle was highlighted in the Kaneria v Kaneria case.

Question 46

Fill in the blank: The court commonly applies the _______ test for applications made after the deadline has expired.

Answer 46

relief from sanctions

Question 47

What principle did the Denton test establish in relation to relief from sanctions?

Answer 47

It assesses the seriousness of the breach and the impact on litigation. ## Footnote This is relevant in cases like Al Hamadani v Al Khafaf and Coal Hunter v Regulas.

Question 48

What is the procedure for specific disclosure?

Answer 48

Make a written request under CPR 31 and PD 31A. If unsuccessful, use CPR 23 application.

Question 49

What are the grounds for specific disclosure?

Answer 49

1. Inadequacy of the disclosure by disclosing party. 2. Search scope carried out was unreasonably limited. 3. Concerns about the extent to which documents have been redacted.

Question 50

What must be established for specific disclosure to be granted?

Answer 50

1. Must affect or support own or other party’s case. 2. Will enable to resolve, save costs or fair proceedings. 3. Reasonable, proportionate and just to allow it.

Question 51

What is required if the application for specific disclosure is pre-action?

Answer 51

The matter must be urgent, and the respondent and applicant are likely to be parties in a proceeding.

Question 52

What is the procedure for non-party disclosure?

Answer 52

CPR 31.17 requires a CPR 23 application.

Question 53

What is the jurisdictional test for non-party disclosure?

Answer 53

1. Likely to support the case of the applicant or adversely affect the case of another party. 2. Disclosure is necessary to dispose fairly of the claim or save costs.

Question 54

What does the case Three Rivers v HM Treasury establish about the threshold condition?

Answer 54

The threshold condition is lowered by the qualification 'likely to'. It is not necessary that the documents will support or adversely affect; it is enough that they are likely to do so.

Question 55

What does the case Black v Sumitomo clarify about the meaning of 'likely'?

Answer 55

'Likely' has the meaning 'may well' and is not as high as 'more probable than not'.

Question 56

What does the case American Home v Novartis state about criteria for document disclosure?

Answer 56

The criteria must be satisfied for each of the documents where a party is seeking disclosure of a class of documents.

Question 57

What are some example grounds to challenge the admissibility of evidence?

Answer 57

1. Evidence is not relevant. 2. Should be excluded under CPR 32.1 to deal with the case justly and at proportionate cost. 3. Credibility and reliability issues. 4. Documents are privileged. 5. Opinion evidence provided by a witness of facts. 6. Expert lacks experience, is biased, contradicting, or not qualified. 7. One of the exclusionary rules applies.

Question 58

How should you address District Judge?

Answer 58

Judge

Question 59

How should you address Circuit judge?

Answer 59

Your Honour

Question 60

How should you address High Court judge?

Answer 60

My Lord or My Lady

Question 61

How do you address opponent?

Answer 61

Defendant or Claimant

Question 62

How to address Solicitors

Answer 62

My Friend

Question 63

How to address Barristers?

Answer 63

My Learned Friend

Question 64

When making or opposing a civil application... What is the first step, Second and Third Step? As a basis for all applications? State for example how you would introduce this in the actual exam

Answer 64

1) Identify the type of releif sought or opposed and the applicable legal principle... "We seek to obtain ______ in favour of _____ according to_____" 2)State the relevant test, conditions or grounds that need to be satisfied. "and not that the Court needs reminding " 3)Analyse the facts and evidence within the legal test framework " The ____ is due to ____ and had failed to do so"

Question 65

Step 4 and Step 5 of advocacy?

Answer 65

4) Where relevant , refer to the overriding objective or pre-action conduct... explain why the decision sought is in line with the OO... 5)Set out any additional relief sought e.g costs or interest...

Question 66

How does Overriding Objective impact case management?

Answer 66

Courts apply CPR 1.1 to ensure fair and proportionate procedures , balancing justice, speed and cost-effectiveness in decisions on relief, sanctions, and case directions . Judge must apply the Overriding Objective when managing case timelines Fairness, efficiency and access to justice