Civil Advocacy (DR) Flashcards
(16 cards)
C applies for Default Judgement
Filing a request or under CPR 23:
- D failed to file an acknowledgment of service or defence to the claim or counterclaim (wholly or in part) by the relevant time.
Time periods:
- 14 days to file DEFENCE or ACKNOWLEDGMENT OF SERVICE from date of particulars.
- 28 days to file DEFENCE if acknowledgement of service filed.
D applies to set aside Default Judgment
Under CPR 23:
Court MUST set aside DJ if:
- D filed defence or acknowledgment of service before the default judgment.
- D applied for summary judgment or for C’s statement of case to be struck out, before default judgment.
- D filed or served admission of liability to pay all money claimed + request for time to pay.
- Whole claim satisfied before judgment.
Court MAY set aside DJ if:
- D has a real prospect of successfully defending the claim,
OR
- Some other good reason why the claim should proceed to trial. (Consider 3-stage Denton v White test) how serious & significant was non-compliance, why did non-compliance occur (trivial error is unsatisfactory), all circumstances of the case for it to be dealt with justly (efficiently, at proportionate cost, enforce compliance with rules, directions, orders).
For DISCRETIONARY grounds: Was app made promptly? Overriding objective being furthered? Would prejudice be caused to C?
C or D applies for Summary Judgment
Under CPR 23:
Court has DISCRETION to give summary judgement if applicant can show:
- Respondent has no real prospect of succeeding on claim or successfully defending claim,
AND
- There is no other compelling reason why the claim/issue should proceed to trial (eg. ongoing investigation, does judge have all relevant testimony & expert opinions to deal with issues, is cause of action weak).
Orders: judgement on whole claim, judgement on particular issues, striking out/dismissing claim, proceedings continue on issue of quantum only, dismissal of SJ application, conditional order.
C applies for Interim Payment
Court has DISCRETION to award C with interim payment if C can show:
- D has filed acknowledgment of service,
AND
- One of the below conditions satisfied:
* If claim went to trial, C would obtain judgment for a SUBSTANTIAL amount of money (other than cost) whether or not D is only D,
* D has admitted liability (to pay damages),
* C has obtained judgment against D,
* If two or more Ds: if claim went to trial C would obtain significant amount of money against at least 1 day + all Ds are insured / D is a public body.
Then:
- explain what interim payment used for,
- request specific sum for payment or instalment payment,
- demonstrate that sum requested is a REASONABLE proportion of LIKELY DAMAGES (final judgment),
- demonstrate that payment is needed ASA reasonably P.
D applies for Security for Costs
D includes: D to C’s claim, C to D’s counterclaim, Respondent to Appealant (in appeals).
Request by letter or under CPR 23:
Court has DISCRETION to order security for costs if D establishes 1+ of the following:
- Reasons to believe C will be unable to pay D’s costs if ordered to do so,
- C has taken steps to put assets out of reach making enforcement of costs order difficult (transfer to other person / abroad),
- C is resident abroad,
- C has changed addresses / gave incorrect address / failed to give address on claim form,
- C has changed addresses since claim started with a view to evading consequences of litigation.
To exercise wide discretion, court must be satisfied that:
- Just and fair in all circumstances,
- If C’s lack of money was brought about by D’s conduct,
- Whether application has reasonably good prospect of success & not made to oppress/stiffle a genuine claim,
- Any delay in applying.
Orders: Court decides amount, time, type of security (payment to court? applicant’s solicitor? bank guarantee? undertaking to pay?), what happens if security not granted.
C or D applies for Interim Injunction
Under CPR 23:
Court has DISCRETION to award interim injunction if:
- There is a sufficiently serious (substantial) question/issue to be tried (ie. issue has supporting material but outcome is uncertain) ?
- If on balance of convenience of EACH party, it is fair and just to award injunction?
- Damages would NOT be an adequate remedy,
- Applicant would be prepared to provide cross-undertaking in damages (compensate other party if injunction turns out to be wrongly granted),
- If there are any special factors.
C or D applies for Freezing Injuction
CPR Part 23 Procedure:
- Granted where the court considers it JUST and CONVENIENT to do so,
AND
- Applicant has a cause of action (although if not might be sufficient),
- Applicant has a good arguable case,
- Existence of the asset seeking to be “frozen”,
- Applicant would be prepared to provide cross-undertaking in damages (compensate other party if injunction turns out to be wrongly granted),
- If BEFORE issuing claim: It is urgent for freezing injunction to be ordered or in the interests of justice + applicant undertakes to issue a claim form.
- If WITHOUT NOTICE: Applicant has duty of full and frank disclosure of all material facts EVEN if NOT in their favour + applicant undertakes to serve the respondent.
C or D applies to Strike out Statement of Case (or part)
CPR Part 23 Procedure: Court has DISCRETION to strike out a statement of case, in whole or in part, if applicant proves:
- The statement of case discloses no reasonable grounds for bringing or defending the claim: the statement is bound to fail (not just weak) because it is not legally recognisable, no facts or contradicting facts, incorrect D sued, bare denial with no explanation,
OR
- The claim or defence is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings: obviously ill-founded, unfounded claim to put pressure, vexatious, grossier/vulgaire (legitimate reason for pausing process is NOT abuse but must not cause significant prejudice),
OR
- There has been a failure to comply with a rule, practice direction or court order (eg. failure to pay court fees): bringing a claim before negotiation to settle has concluded, wilful repeated failure to reply with court orders (but power not to be used prematurely).
Must be JUST and not disproportionate.
Orders: Strike out and will UNLIKELY to be ordered if other sanctions are available (cost penalties, payments into court, etc).
C or D applies for Unless Order
Uunless a party performs an obligation by a specified date or within a particular period, they will be penalised by the sanction set out in the order.
Court has DISCRETION to make case management order if Applicant can show:
- Other party is in breach of a court order AND Applicant has complied with the court order,
AND,
- Order would be in the interest of furthering the overriding objective (enforce court orders and deal with cases fairly, justly and at proportionate cost).
C or D applies for Relief from Sanctions
CPR Part 23 Procedure: The court has DISCRETION to grant relief from sanctions by considering the need to conduct litigation efficiently and at proportionate cost, and to enforce compliance with rules, practice directions and court orders.
Denton v White Test: Court must approach test by:
1. Consider seriousness of non-compliance: breach must not be SERIOUS AND SIGNIFICANT enough to warrant sanction,
2. If breach is serious enough, Why did default occur: Good reason? Trivial errors/mistakes are not good reason for serious breach.
3. Consider all circumstances of the case to deal proportionately, efficiently and enforce compliance: Was application made promptly? Have there been previous breaches? Is the sanction proportionate to the breach?
C or D applies for Stay of Proceedings / Adjournment
Judge has DISCRETION to make case management orders which further the overriding objective: deal with cases fairly, justly and at proportionate cost.
- Adjournment / stay of proceedings is necessary,
- It is in the interest of the overriding objective to adjourn / stay the proceedings,
- This application was made promptly after the need for an adjournment / stay of proceedings has arisen.
C or D applies for Specific Disclosure
CPR Part 23 Procedure: Court has DISCRETION to award specific disclosure if Applicant proves one or more of following:
- Disclosure by disclosing party was inadequate,
OR
- The scope of the search was unreasonably limited,
OR
- Concerned about the extent to which disclosure has been redacted.
Specific disclosure must be:
- Affect or support own or other party’s case,
- Enables the parties to resolve issues, save costs or ensure fair proceedings,
- It is reasonable, proportionate and just to allow it.
If PRE-ACTION: Applicant must also prove that it is urgent to receive the specific disclosure + parties likely to be parties in a proceeding.
C or D applies for Non-Party Disclosure
CPR Part 23 Procedure: Court has discretion to allow a non-party to the proceedings to make disclosure if:
- The disclosure is LIKELY TO support the case of the applicant or adversely affect the case of another party: does not “have to” only “may well” but must apply to every document in a class of documents,
AND
- Disclosure is necessary in order to dispose fairly of the claim or save costs.
C or D at Track Allocation Hearing
Judge has DISCRETION to use case management powers in allocating a claim to a track:
- Financial value of claim is initial indicator (EXCLUDING any amount NOT in dispute, interest, costs, contributory negligence),
- Set out facts of case,
- Factors relevant to track allocation:
1. value of claim for DAMAGES,
2. does claim involve PI or protected party,
3. complexity of the claim (law, evidence, test case),
4. amounts of days per trial required. - Conclude with track recommendation.
C or D requests a reply to Part 18 Request for Further Info
If party does not comply voluntarily with Part 18 request: Court has discretion to require a reply if:
- The information sought is reasonably necessary to: clarify the matters in dispute OR enable the applicant to prepare their own case (in pleading/evidence/cross-examination).
Factors considered by court:
- is information essential to define the issues?
- is request proportionate (not oppressive or “fishing expedition”)?
- stage of the proceedings,
- does request duplicate disclosure obligations or could be dealt with later at trial?
- is wording of request clear and specific?
