Dispute resolution - advocacy tests Flashcards
Learn all of the potential advocacy tests for SQE2 (28 cards)
Overriding objective
(1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases;
f) promoting or using alternative dispute resolution; and
(g) enforcing compliance with rules, practice directions and orders.
Default judgment
Conditions:
Defendant failed to file an acknowledgment of service or file a defence to the claim or counterclaim; and
the relevant period for doing so has expired.
Set aside default judgment (mandatory)
The court MUST set aside a default judgment if:
D filed its AOS / defence before default judgment;
D applied for summary judgment or C’s statement of case to be struck out before default judgment.
D filed or served admission of liability to pay all of the money claimed together with a request for time to pay.
The whole claim is satisfied before judgment.
Set aside default judgment (discretionary)
The court may set aside a default judgment if:
the defendant has a real prospect of successfully defending the claim; or
there is some other reason why the default judgment should be varied or set aside.
The court should consider this alongside the relief from sanctions test under Denton v White, considering (1) the seriousness of the breach, (2) why the breach occurred and (3) evaluate all the circumstances. It should also consider whether the application was made promptly, the overriding objective and whether prejudice will be caused to C.
Summary judgment
The court is satisfied that the respondent has:
no real prospect of success; and
there is no other compelling reason why the case should be disposed of at trial.
Interim payment
Court has discretion:
if claim went to trial, C would obtain a judgment against D for a substantial sum of money;
D has admitted liability to pay damages;
C has obtained a judgment against D for a sum of money or another sum to be assessed (other than costs).
The court must be satisfied that:
The amount does not exceed a reasonable proportion of the likely amount of final judgment.
There is a need to be paid as soon as possible.
Interim injunction
Is there a sufficiently serious issue to be tired?
If so, on the ‘balance of convenience’ of each party, would it be fair and just?
Would damages be an adequate remedy?
If not, would the applicant’s crossundertaking in damages provide adequate protection if the court were to grant interim injunctive relief wrongly.
Freezing injunction
Only granted where the court considers it just and convenient to do so, in addition:
The applicant has a cause of action.
Applicant has a good arguable case
Existence of the assets
Real risk of dissipation of the assets
Applicant must provide an undertaking in damages.
If done before issuing the claim, the applicant must prove to be urgent or otherwise in the interests of justice and must undertake to issue a claim form.
Adjournment or stay of proceedings
Judge has discretionary case management powers to manage cases so that they further the overriding objective.
Explain why the adjornment/stay is necessary
Show why it is in the interests of the overriding objective
Prompt application after the need for adjornment arises.
Challenge admissibility of evidence
Evidence is not relevant.
Should be excluded to deal with the case justly and at proportionate costs.
Credibility and reliability.
Documents are privileged.
Opinion evidence provided by witness of fact.
Expert lack of evidence, biased, contradicting
One of the exclusionary rules applies.
Directions
The court has the power to make or vary directions to further its general case management powers.
You should justify the directions you seek by reference to the relevant CPR. Also refer to overriding objective.
Specific disclosure
Grounds
Inadequacy of disclosure by the disclosing party.
Search scope carried out was unreasonably limited.
Concerns about the extent to which documents have been redacted.
Conditions
Must affect or support own or other party’s case.
Will enable to resolve, save costs or fair proceedings.
Reasonable, proportionate and just to allow it.
Pre-action it must be urgent.
Non-party disclosure
Likely to support the case of the applicant or adversely affect the case of another party’s.
Disclosure is necessary in order to dispose fairly of the claim or save costs.
Pre-action disclosure
The respondent is likely to be a party to subsequent proceedings
The applicant is also likely to be a party to the proceedings.
The documents fall under standard disclosure if proceedings were issued.
The court is satisfied that disclosure before proceedings is desirable because:
it will dispose fairly of the anticipated proceedings;
assist the dispute to be resolved without proceedings; or
save costs.
Permission for late evidence
Court has the power to extend or shorten the time for compliance even after the time for compliance has expired.
There must be compelling grounds as to the pertinence and the necessity of that evidence, and exceptional circumstances which justify the failure to appreciate the need for it earlier.
If the application is made in time, consider the overriding objective.
If out of time, consider the relief from sanctions test.
Permission to appeal
Grounds:
Wrong in law, fact or discretion.
Unjust due to serious procedural or other irregularity.
Criteria:
The appeal has a real prospect of success
There is some other compelling reason for the appeal to be heard.
Relief from sanctions
The court considers the need to:
Conduct the litigation efficiently at proportionate cost.
Enforce compliance with practice directions, rules, court orders.
Three stage test:
Identify and assess the seriousness of the non-compliance, is it serious and significant?
If so, why did the default occur?
Consider all the circumstances of the case.
Security for costs
Grounds
Reason to believe C will be unable to pay D’s costs if ordered to do so (company or body).
Claimant is a company or individual resident outside the jurisdiction.
Claimant has changed addresses since issuing the claim with intention of evading consequences of litigation
Claimant has failed to give address or gave an incorrect addres
Claimant has dealt with its assets so as to make enforcement of an order for costs difficult to enforce against it.
The claimant has been acting as a nominal claimant and there is reason to believe it will not be able to pay the costs if ordered to do so.
Test:
The court retains a wide discretion and must be satisfied:
Whether it is fair and just in all the circumstances
Whether the respondent’s lack of money was brought about by the applicant’s conduct.
Whether the application is genuine, not a sham
Whether there was a delay in applying.
Only available in proceedings, not pre-action. Court will decide on time, type and what happens if security not given
Single joint expert
The court may direct that evidence is to be given by a SJE (common in fast track and small track claims).
Court is likely to order SJE:
to promote proportionality and cost efficiency
the matter is not complex and the parties’ interests are aligned.
avoiding a ‘battle of the experts’.
Party may object and request their own expert if:
The case involves complex or highly contentious technical issues
The parties have differing interests that make joint instruction inappropriate
A party can show that it would not be in the interest of justice to rely solely on a joint expert.
Strike out
Disclose no reasonable grounds for bringing or defending claim.
Abuse of court process or is otherwise likely to obstruct the just disposal of proceedings.
Failed to comply with a rule, PD or order.
Unlikely if other sanctions are available.
Track allocation
Small claims
Under £10k
PI - under £10k and if injuries from aRTA less than £5k, other PI less than £1.5k
Tenant - £1k
Expert fees limited to £750.
Fast track
£10k-£25k.
£5k max for RTAs unless after 31 may 2021 - all must be fast track.
Tibial must not exceed 1 day or more than 2 experts in 2 subject fields.
Fixed costs.
Intermediate track
£25k-£100k
Fixed co
Max 3 day trial.
2 experts per party (expert report should not exceed 20 pages).
Multi-track
Over 100k or trial will last more than 3 days.
Court considerations:
Financial value
Nature of the remedy sought
Likely complexity
Number of parties of claim or likely parties
Value of counterclaim or additional claim
amount of oral evidence which may be required
importance of the claim
views expressed by the parties
circumstances of the parties
Setting aside small claims decision
If party not in attendance, they may make an application within 14 days of service of the order showing:
They had a good reason for not attending;
their claim or defence has reasonable prospect of success
Unless order
Court has discretionary power.
The applicant must show:
failure to act at all
failure to act before deadline
failure to pay a sum of money
Applicant must have complied with the order.
Search order
Only if all of the following criteria are met:
Extremely strong prima facie case
Very serious actual or potential damage
Clear evidence that the respondent has incriminating items in their possession
Real possibility that the respondent may destroy the evidence.
The applicant must given an undertaking in damages and a supervising solicitor must be appointed. The order must be proportionate and strictly necessary.
