Dispute resolution advocacy

Question 1

Overriding objective

Answer 1

Claims should be dealt with justly and at a proportionate cost.

CPR 1

Question 2

Application to strike out

Answer 2

1. Claim / defence has disclosed no reasonable grounds for bringing / defending the claim, OR
2. Claim / defence is an abuse of the court’s process, OR
3. There was a failure to comply with a court order, direction, or rule

CPR 3

Question 3

Relief from sanctions

Answer 3

1. Court must consider all circumstances to deal with the case justly, including:
   a. The need for litigation to be conducted efficiently and at proportionate cost
   b. To enforce compliance with rules, directions, and orders
2. Denton v White provides guidance on how the court should approach this test by providing a 3-stage approach:
   a. Seriousness of the breach, if serious move on to (b)
   b. Reason for the breach, if not trivial move on to (c)
   c. evaluate all circumstances of the case so the application is dealt with fairly

CPR 3.9, Denton v White

Question 4

Setting aside default judgement

Answer 4

MANDATORY

1) Judgement was wrongly entered
a. Time for filing the A of S or defence had not expired
b. Claim already settled
c. Application to strike out not considered yet
d. D requested time to pay and request has not been considered yet

DISCRETIONARY

1) Defendant has real prospect of successfully defending the claim, OR
2) There is some other good reason why the judgement should be set aside, or the defendant should be allowed to defend the claim.
3) In addition, the application must have been made promptly.

CPR 13

Question 5

Summary judgement

Answer 5

DISCRETIONARY

1) Party has no real prospect of succeeding on the claim, AND
2) There is no other compelling reason why the case should be disposed of at trial.
a. Whether the court has all the information it needs to make a decision on the merits of the underlying claim- if so, it should give judgement now

CPR 24

Question 6

Security for costs

Answer 6

DISCRETIONARY

1) Must show claimant is: (one of these grounds)
a. Out of jurisdiction
b. Company or other body and there is reason to believe that it will be unable to pay
c. Has changed / not given address since the claim was started with a view to evading the consequences of litigation
d. Applying on behalf of another (nominal claimant)
e. Has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him

CPR 25

Question 7

Interim injunction

Answer 7

DISCRETIONARY

1) There is a serious question to be tried
2) Damages would not be an adequate remedy
3) The balance of convenience lies in favour of the injunction
4) Maybe offer undertaking in damages

CPR 25A, American Cyanamid

Question 8

Search order

Answer 8

1. Strong case on the merits
2. D’s activities cause very serious potential or actual harm to the C’s interest
3. Clear evidence that the property and documents are in the D’s possession AND there is a real possibility the material may be destroyed

CPR 25A (same as interim injunction)

Question 9

Freezing injunction

Answer 9

1. Strong case on the merits
2. D has assets within the jurisdiction
3. Real risk the D may dispose of or dissipate those assets before judgement can be enforced

CPR 25A (type of interim injunction)

Question 10

Interim payment

Answer 10

DISCRETIONARY

1) D admits liability, OR
2) If claim went to trial, court is satisfied that C would be awarded a substantial sum, OR
3) C has already obtained judgement

Then request the sum:
4) Specify sum sought
a. Take into account contributory negligence and counterclaim
5) Items or matters in respect of which the payment is sought
6) Estimate sum of final judgement, and demonstrate that sum requested is reasonable proportion of likely judgement

CPR 25B

Question 11

Specific disclosure

Answer 11

DISCRETIONARY

Court must be convinced the party has documents that may:
1. Contain information that would assist the applicant’s case or damage the respondent’s case; OR
2. Lead to a train of enquiry which has either of those consequences

CPR 31.12

Question 12

Application for adjournment / stay of proceedings

Answer 12

1. Applicant must show how they acted promptly
2. Explain why adjournment is necessary
3. Explain why it is in the interests of the overriding objective

Question 13

Unless order

Answer 13

1. Other party is in breach of an order you have complied with, AND
2. It is in the interest of the overriding objective to make this order

CPR 3.1

Question 14

Track allocation hearing

Answer 14

1. Set out the facts
2. Apply the facts to the track allocation factors
   a. Value of claim, is there a protected party or personal injury, complex claim
3. Conclude with a track recommendation

Question 15

Pre-action disclosure

Answer 15

1. Applicant and respondent are likely to become parties to the proceedings
2. If proceedings started, the respondent’s duty by way of standard disclosure would extend to the documents which the applicants seeks disclosed
3. Pre-action disclosure is necessary to assist with:
   a. Resolving the dispute without proceedings
   b. Saving costs
   c. Disposing of the proceedings fairly

CPR 31