Civil Flashcards
(42 cards)
Summary judgement
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Test?
Rule 24.3 states that the court may give summary judgment on the whole of the claim or on an
issue if:
(a) it considers that the party has no real prospect of succeeding on the claim, defence or
issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial
Compelling reason?
- The need to allow more time for the matter to be investigated, perhaps due to difficulties
in contacting an important witness. - The claim or defence is of a highly complicated and/or technical nature so it can only be
properly understood with all the evidence that would be available at a full trial. - The need to hear from witnesses, particularly if one of the central issues (such as the
terms of a contract) is disputed oral evidence
Hussain v Woods - appropriate to continue where ‘an apparently credible witness says one thing and another apparently credible witness says the opposite and there is not conclusive circumstantial evidence pointing one way or another’.
NOTE
Perhaps suggest only part of summary judgement during advocacy (part of the final figure) e.g. for work completed.
Should be granted when?
Sinclair v Chief Constable of West Yorkshire - claim or defence is ‘merely fanciful, imaginary, unreal or intrinsically unrealistic’.
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Relief from sanctions
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Test?
In deciding whether to grant relief the court will consider all the circumstances of the case, as to enable it to deal justly with the application :
a) for litigation to be conducted efficiently and at proportionate cost
b) to enforce compliance with rules, practice directions and orders.
Denton v TH White -
- identify and assess seriousness of breach
-why it occurred
-evaluate all circumstances of the case.
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Default judgement
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Applying for default judgement
C must satisfy the court that :
the particulars of claim have been served on D
D has not filed an acknowledgement of service or a defence within the relevant time period.
C must :
indicate when payment was due
calculate up-to-date total for interest claimed
state a daily rate at which interest accrues.
Setting aside default judgement
Mandatory ground -
Wrongly entered
Discretionary ground -
has a real prospect of successfully defending the claim
OR
there is some other good reason why D should be allowed to defend the claim.
First ground linked to merits
Second - D ill, or away on holiday.
Misplaced documents or work pressure not sufficient.
Court will take into account promptness of D’s application.
Denton v White
Denton v TH White -
- identify and assess seriousness of breach
-why it occurred
-evaluate all circumstances of the case.
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Interim Payment (CPR r25.7)
The court may only make an order for an interim payment where any of the following conditions are satisfied
(a) - the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant
(b) - the claimant has obtained judgement against the defendant for damages to be assessed or for a sum of money
(c) - it is satisfied, that if the claim went to trial, the claimant would obtain judgement for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim.
(4) - the court must not order an interim payment of more than a reasonable proportion of the likely amount of judgement.
(5) the court must take into account
-contributory negligence
-any relevant set off or counterclaim.
PD 25B -
An application for an interim payment of damages must be supported by evidence dealing with the following
(1) the sum of money sought by way of an interim payment
(2) the items or matters in respect of which the interim payment is south
(3) the sum of money for which final judgement is likely to be given
(4) the reasons for believing that the conditions set out in 25.7 are satisfied
(5) any other relevant matters
(6) in claims for personal injury, details of special deafen and future loss
Burden of proof?
If claimant went to trail, claimant would obtain judgement. Burden of proof on balance of probabilities (but higher standard).
‘Judge I accept that the burden of proof is a high one falling on the balance of probabilities …’
Structure
Address on merits of the claim
Then
‘Substantial sum of money’
A figure, that to the client, in the circumstances is substantial.
Address the court on the figure.
Court may decide not to if it is not appropriate to order too close to trial, too small amount or would delay or prejudice a fair trail.
- The court must not order for more than a reasonable proportion of the final judgement
- Must take into account, any contributor negligence and any counter-claim.
- Address on sum of final judgement, the sum of money sought and the percentage that is of final judgement.
Awards have been as high as 90%. - Address counterclaim, if ask court to ignore must present cogent evidence or point to any lack of cogent evidence from defendant.
Address chance of establishing entitlement to amount claimed, likelihood D will be unable to recover from C any overpayment and any hardship D is likely to suffer.
PD 25B
interim payment of damages must be supported by evidence with the following :
items or matters in respect of which the interim payment is sought
in claims for personal injures details of specials damages and past and future loss
in a claim under fatal accidents act 1976 details of the person on whose behalf the claim is made and nature of claim
Personal injury unlike others may need to explain why interim payment needed.
Good structure
Merits of claim (success at trial)
Amount of substantial damages awarded at trial.
Third - exercise discretion to make order
Fourth - reasonable proportion of the likely judgement.
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Security for costs
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CPR r 25.13
(1) The court may make an order for security for costs under rule 25.12 if—
(a)it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and
(b)(i)one or more of the conditions in paragraph (2) applies, or
(ii)an enactment permits the court to require security for costs.
(2) The conditions are—
[F2(a)the claimant is—
(i)resident out of the jurisdiction; but
(ii)not resident in F3… [F4 a State bound by the 2005 Hague Convention] F5…, as defined in section 1(3) of the Civil Jurisdiction and Judgments Act 1982;]
F6(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)the claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;
(d)the claimant has changed his address since the claim was commenced with a view to evading the consequences of the litigation;
(e)the claimant failed to give his address in the claim form, or gave an incorrect address in that form;
(f)the claimant is acting as a nominal claimant, other than as a representative claimant under Part 19, and there is reason to believe that he will be unable to pay the defendant’s costs if ordered to do so;
(g)the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.
Claimant is an impecunious company (c)
Provide evidence of grounds on which security for costs is sought.
(c) - claimant’s latest accounts.
Location of assets
Amount of security sought and details of cost already incurred.
Parties correspondence if payment refused.
Claimant resident outside a 2005 Hague Convention State
Outside the EU and UK.
Individuals - normally and habitually live
Companies - central control and management located
