Civil Advocacy Tests

Question 1

What are the 8 most likely applications that could arise in the dispute advocacy assessments?

Answer 1

1. Default judgment
2. Summary judgment
3. Interim payment
4. Interim injunction
5. Relief from sanctions
6. Security for costs
7. Strike out
8. Unless order

Question 2

What is the overriding objective under CPR Part 1.1 and how does it apply in dispute resolution?

Answer 2

The Overriding Objective (CPR 1.1) is to enable the court to deal with cases justly and at proportionate cost, meaning:

• Ensuring equal footing between parties
• Saving expense
• Dealing with cases fairly, expeditiously, and proportionately (considering money, importance, complexity, and party resources)
• Allocating court resources appropriately

Question 3

What are the overriding objectives under the CPR in parts 1.2, 1.3 and 1.4 and how do they apply in dispute resolution?

Answer 3

CPR 1.2: The court must apply the overriding objective when interpreting rules.

CPR 1.3: The parties have a duty to help further the objective.

CPR 1.4: Courts must actively manage cases, including:

• Encouraging ADR and cooperation
• Identifying and narrowing issues early
• Setting timetables
• Using tech efficiently

Question 4

1. What is the ground under which default judgment must be set aside?
2. What is the ground under which default judgment may be set aside?

Answer 4

1. Mandatory Ground

• The court is obliged to set aside a default judgment if it was wrongly entered.

Examples of judgment being wrongly entered:

• Judgment has been entered too early, e.g. before the time for filing an ackowledgment of service or a defence has expired.
• The claim has already been paid in full

2. Discretionary Ground

• The defendant has a real prospect of successfully defending the claim;

OR

• There is some other good reason why the defendant should be allowed to defend the claim i.e. the defendant was ill or away on holiday so could not repsond within the time constraints.

*The court will also take into acount PROMPTNESS of the D’s application to set aside, so it is essential the D files their application as soon as they become aware of the default judgement to comply with the overriding objectice of ensuring cases are dealt with expeditiously and fairly. *

Question 5

What is the test for summary judgment?

Answer 5

The court may give summary judgement on the whole of the claim or on an issue if it considers;

1. A party has NO REAL PROSPECT of succeeding on the claim, defence or issue.

AND

2. There is NO OTHER COMPELLING REASON, why the case or issue should be disposed of at a trial.

• The compelling reason limb refers to whether the court has all the information it needs to make a decision on the merits of the underlying claim. If the court has all this information then there’s no reason to waste the court’s time at trial if it can make that call now.

Question 6

What legal grounds does the court consider when deciding whether to grant relief from sanctions? (Denton v White factors)

Answer 6

The court follows the three-stage test from Denton v White [2014] EWCA Civ 906:

1. Assess the seriousness or significance of the breach – If the breach is minor or has little impact on the proceedings, relief is likely to be granted. Serious or significant breaches require closer scrutiny.

• Application: A trivial breach (e.g. filing a document hours late) is less likely to justify refusal of relief.

2. Give reasons for the breach – The court examines whether there was a good or compelling reason for the default, such as illness or unforeseen technical failure.

• Application: Strong reasons may support relief even for serious breaches; weak or absent reasons undermine the application.

3. Evaluate all the circumstances of the case – The court considers the need for litigation to be conducted efficiently and proportionately, and to enforce compliance with rules and orders.

• Application: Even if the breach is serious, relief may still be granted if denying it would be unfair in the context of the whole case (e.g. the default had no real prejudice to the other party).

Question 7

What grounds must be satisfied before the court will make an interim payment?

Answer 7

• The defendant has admitted liability
• The claimant has obtained a judgment against the defendant for a sum of money to be paid or for damages to be assessed.
• The court is satisfied that if the case went to trial, the claimant would obtain judgment for a substantial sum (other than costs).

For this last ground the burden on the applicant is high, they must prove on the balance of probabilities they WILL succeed if the claim were to proceed to trial.

Question 8

What 4 things must the applicant for an interim payment include in their application?

Answer 8

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

Question 9

When determining whether to grant an interim injunction, what 5 things will the court consider?

Answer 9

The court will assess:

1. Whether there is a serious question to be tried – The claim must have real substance and not be frivolous or vexatious (American Cyanamid Co v Ethicon Ltd [1975] AC 396).

2. Whether damages are an adequate remedy – If financial compensation would be sufficient to resolve the harm for either party, an injunction may not be necessary.

3. Where the balance of convenience lies– The court weighs the potential harm to both sides and will favour the option that causes the least injustice overall.

4. Whether the applicant has ‘clean hands’ and has not delayed – The applicant must have acted fairly and promptly; any misconduct or unreasonable delay can defeat the claim.

5. Whether there are any special factors – The court may take into account wider implications, such as effects on third parties or the public interest (e.g. freedom of expression).

Question 10

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

Answer 10

• An undertaking in damages
• This is a promise to compensate the other side if it turns out the injunction should not have been granted.

Question 11

What are 5 grounds (one of more which must be satisified) when applying for a security for costs order?

Only whom can apply for security for costs?

Answer 11

1. The claimant is a resident outside a 2005 Hague Convention State-

• The D may apply for an order for security of costs where the claimant (whether an individual or a company) is a resident outside the jurisdiction (England and Wales).
• The claimaint is also not resident in a state bound by the Hague Convention (which includes the EU and the UK).
• For individuals this is where they normally and habitually live; whereas for companies it is where their central control and manamgement are located.

2. Claimant is an impecunious COMPANY

• D must establish there is reason to believe the claimant will be unable to pay the D’s costs if odered to do so.
• Evidence of the company’s financial assets + likely total costs of litigation will be essential.

3. Claimant has taken steps to make enforcement difficult

• The D must demonstrate that the C has taken steps in relation to their assets such that if they lose the case and a costs order is made against them the order will be difficult to enforce.
• Examples of circumstances that could be seen as a C making enforcement difficult include- C relocating to another country, C moving assets out of the juridiction

4. The claimant has changed address, failed to provide an address or given an incorrect address to evade the consequences of litigation
5. Justness

• The court must be satisfied that it is JUST to make the order.

Only a DEFENDANT can apply for a security of costs order as a claimant is free to discontinue proceedings at any time.

Question 12

In a security for costs application, when a court is deciding whether it is JUST to grant a security for costs order, what factors will they evaluate (5)?

Answer 12

1. The strength of the claim and the defence:

• If the D isn’t particularly likely to win at trial, they will be deemed less jusitified in seeking security.

2. The claimant’s ability to provide security:

• If a claimant has a reasonable prospect of success, the courts will be more reluctant to make an order for security which the claimant will not be able to comply with as this will stifle the claim.

3. Reasons for the claimant’s impecuniosity:

• A claimant may be able to persuade the court that the reason for their impecuniosity is caused or contributed to by the D’s behaviour.

4. Property within the jurisdiction:

• If an application is made against a claimant living outside the EU, the court is unlikely to grant a security for costs order if they have sufficient assets within the jurisdiciton that would be available to meet the D’s costs.

5. The timing of the application

• The order should be applied for as soon as possible.

Question 13

What are the 3 grounds (one of which must be satisfied) in an application to strike out the other party’s case?

Answer 13

1. The statement of case discloses no reasonable grounds for bringing or defending a claim.

• The D’s statment of case contains a bare denial: they simply state the C’s allegations are completely untrue but have not actually explained why
• The C’s particulars of claim may not be detailed enough

2. The claim or defence is an abuse of court process.
3. The other party has failed to comply with a rule, practice direction or court order.

Question 14

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

Answer 14

1. The other party has failed to comply with a previous court order/rule, that the applicant has complied with.

• E.g. the applicant exchanged witness statements by the deadline but the other party failed to do the same

2. A sanction like striking out the claim is a proportionate response to the breach/in the interests of the overriding objective, if the unless order is not complied with.

Question 15

What are the 3 things to show in an application for track allocation?

Answer 15

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

Question 16

What two things must be shown in an application for adjournment/stay?

How quickly must an application for adjournment/stay of court proceedings be made?

Answer 16

• Why the adjournment/stay of court proceedings is necessary
• Why the adjournment/stay is in the interests of the overriding objectives.

Promptly, an applicant must show they acted promptly.

Question 17

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 17

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 18

What are the two legal tests for a freezing injunction

Answer 18

1. The court must be satisfied the applicant has a strong claim/ good arguable claim
2. There is a real risk the defendant will dispose of their assets to prevent the enforcement of a potential judgment

Freezing injunctions are made WITHOUT NOTICE

Question 19

What are the 2 legal tests for a search order?

Answer 19

1.The court must be satisfied that the applicant has a strong claim/good arguable claim.

2.The court must be satisfied that the applicant will suffer serious harm if the order is not made and the respondent has incriminating materials in their possession which cannot be obtained by other means.

Question 20

What are the grounds that must be satisfied to add/substitute/remove a party? (made within the limitation period)

Answer 20

Application made within the time limit

It is desireable to:

• Add a new party to resolve
  matters in dispute; or
• To remove a party; or
• To substitute a party where the
  existing party’s interest or
  liability has passed to them.

Question 21

What are the grounds that must be satisfied to add/substitute/remove a party? (made outside of the limitation period)

Answer 21

• A party may only be added or substituted if the limitation period was current when proceedings were started

And

• The original party was named by mistake;
• The original party has died/is subject to a bankruptcy order and their interest or liability has passed to the new party; or
• The claim cannot properly be carried on without the new party.

Question 22

What are the 3 legal grounds required to ammend a statement of case (after the expiry of the limitation period)

Answer 22

1. To add or substitute new claim if it arises out of the same facts, or substantially same facts, as the existing claim
2. To correct a genuine mistake as to the name of a party
3. To alter the capacity in which a party claims

• It means the same person can continue the claim but in a different legal role (capacity), like from an individual to an executor.
• For example, Sarah Smith may bring a claim in her own name, but later it’s corrected to show she’s acting as her father’s executor. This change of capacity is allowed even after the limitation period, as long as it doesn’t cause injustice.

Question 23

What are the 7 grounds to disallow expert evidence?

Answer 23

1. Not reasonably required (CPR 35.1):

• The evidence isn’t needed to resolve the key issues in dispute.

2. Lack of independence (CPR 35.3):

• The expert appears biased or aligned with the instructing party.

3. Inadequate qualifications:

• The expert lacks relevant expertise or recognised credentials in the field.

4. Procedural breaches (CPR 35.4 / 3.9):

• The report is served late or without the court’s permission.

5. Duplication:

• Multiple experts are instructed on the same issue without justification.

6. Disproportionate cost or delay (CPR 1.1):

• The evidence would undermine the overriding objective.

7. Unsound methodology:

• The expert’s reasoning or technique is flawed or unreliable.

Question 24

Grounds to disallow hearsay evidence

Answer 24

The starting point of hearsay evidence is that it is admissible, it only becomes inadmissible if;

1. The hearsay evidence contains facts which are irrelevant to the issues in dispute. Irrelevant facts to the issues in dispute are inadmissible.
2. The hearsay evidence is based on opinion evidence (unless this is based on facts personally perceived by the witness i.e., the D appeared drunk).

• Opinion evidence is not admissible because the function of a witness is to give evidence of relevant facts and allow the court to draw its own conclusions.

Question 25

What are the grounds for permission to appeal?

Answer 25

1. A realistic (not fanciful) prospect of success, or 2. A compelling reason to hear the appeal (e.g. important legal or policy issue). 3. The appeal would raise an important point of principle or practice. (permission to bring a second appeal only)

Question 26

What is the test for specific disclosure?

Answer 26

**1. The document is relevant to the matter in dispute** * The document sought falls within the scope of standard disclosure as it is directly relevant to a matter in issue between the parties. It either supports or undermines the case of the applicant or another party, or may lead to a train of inquiry which has such a result. **2. The court will consider all the circumstances of the case** * The court must consider the proportionality of ordering disclosure, balancing the need for fairness in litigation with the burden and cost of disclosure. The applicant contends that the benefit of inspecting the document justifies any burden on the respondent. **3. The court will apply the overriding objective** * In line with the overriding objective under CPR 1.1, specific disclosure would deal with the case justly and at proportionate cost, enabling a fair resolution by ensuring that all material evidence is available to the parties and to the court.

Question 27

What are the legal grounds (2 main but up to 6) under which expert evidence can be disallowed?

Answer 27

A: Expert evidence can be disallowed for the following reasons: 1. If the opinion does not relate to a relevant matter * The expert’s opinion must relate directly to an issue in the case. If it does not, the evidence can be excluded. 2. If the expert is not properly qualified * Under section 3(1) of the Civil Evidence Act 1972, an expert must be qualified in the relevant field. If they are not, the court can disallow their evidence. 3. If the evidence is not reasonably required * Under CPR 35.1, expert evidence must be reasonably required to resolve the proceedings. If the court decides it is not necessary, it will be disallowed. 4. If the evidence is not proportionate * The court will consider whether the use of expert evidence is proportionate to the issues in the case. If it adds unnecessary cost or complexity or time, it may be refused. 5. If court permission is not obtained * Under CPR 35.4(1), parties need permission from the court to rely on expert evidence. If permission is not granted, the evidence cannot be used. 6. If the report is in the wrong form or shows bias * If the expert’s report does not follow the requirements of CPR 35.10 (for example, missing a statement of truth or showing partiality), it may be disallowed.

Question 28

Applying the Overriding Objective

Answer 28

✅ **Example 1 – Seeking an adjournment:** * “My client is not seeking to delay matters unnecessarily but simply requests a short adjournment to obtain vital documents. This will ensure both parties are on an equal footing and the court can deal with the case justly, in line with the overriding objective.” ✅** Example 2 – Resisting specific disclosure:** * “Disclosure of these documents would be disproportionate in both cost and time. Under the overriding objective, the court must balance the benefit of disclosure against the burden, and we submit it would not assist the just and efficient resolution of this dispute.” ✅ **Example 3 – Asking for relief from sanctions:** * “Although there was a delay, it was minimal, not intentional, and has caused no prejudice to the other side. Refusing relief would not serve the overriding objective, which requires the court to deal with the case justly and fairly.”

Question 29

What is the overriding objective in CPR 1.1 and what does it mean in practice?

Answer 29

The overriding objective is to help the court deal with cases fairly and at a reasonable cost. This means: 1. Making sure both parties are treated equally and can fully take part. 2. Avoiding unnecessary costs. 3. Dealing with the case proportionately to its value and complexity i.e., : * The amount of money involved, * How important the case is, * How complex the issues are, and * Each party’s financial situation. 4. Making sure the case is dealt with quickly and fairly. 5. Using the court’s time and resources fairly between all cases. 6. Encouraging or using alternatives to court (like mediation). 7. Making sure everyone follows court rules and orders.

Question 30

What is the test for proportionality under the overriding objective in CPR 1.1?

Answer 30

When the overriding objective refers to dealing with cases “justly and at proportionate cost”, proportionality includes: **Costs –** Making sure legal costs are not excessive or out of proportion to the value, importance, or complexity of the case. For example, spending £50,000 on a dispute worth £10,000 would not be proportionate. **Time and Resources –** Avoiding unnecessary delays or use of court time. Delays in preparing documents or making applications should not threaten the trial date or waste court resources. **Complexity –** Ensuring that steps taken in the case do not make it more complicated than it needs to be. For example, calling multiple experts or raising unnecessary arguments can make the case disproportionate.