Disputes Flashcards
(30 cards)
Summary Judgment
The court MAY grant an order for summary judgment if:
1. No real prospect of success; and
2. No other good reason for trial
Considerations:
- Expert Evidence
- Time to investigate
- Complex Q of fact or law
- Multi-Party
Set Aside Default Judgment
Court MUST set aside if judgment wrongly entered
- Incorrect service of CF / Particulars
- D already applied for summary / strike out
- D responded within the correct time frames
Court MAY set aside DJ if:
1. Real prospect of success or some other good reason for allowing claim to continue to trial
2. Prompt
3. Denton Factors (seriousness and significance / good reason / IoJ)
4. Furthers OO
Strike Out
(all or part of SoC
Court MAY order SoC to be struck out if specified ground exists:
1. Serious Procedural Breach
2. Vexatious claim; or
3. SoC shows no reasonable grounds
Fair hearing must be impossible
ALternative orders:
- amendment of SoC
- Adverse cost order
Interim Payment
Court MAY make an order for interim payment if:
1. Admitted;
2. Obtained judgment; or
3. If the claim went to trial, C would obtain judgment for a substantial sum of money against D.
- C has a strong prospect of success
- C would be awarded a substantial sum in damages
- C is only asking for a reasonable proportion of final sum (considering contrib neg, set off and counterclaim)
Interim Injunction
Court MAY award if it would be ‘just and equitable’.
1. Serious question to be tried (c has genuine prospect of success)
2. Damages inadequate remedy
3. OS could be adequately compensated with damages (damages adequate + ability to pay (x undertaking)
4. if not, balance of convenience
5. A has clean hands
Costs hearings
GR: Winner pays losers costs. However, court has discretion as to amount who pays and when paid
Who? Court may decide considering all circumstances, in particular:
1. Conduct (willingness to engage in ADR)
2. Whether winner has succeeeded on all points)
Amount?
1. Not multi: fixed by statute but court can dissaply
2. Multi: standard / indemnity basis.
- reasonable and proportionate in amount and reasonably and proportionately incurred (capped at cost budget)
Consider
- sums involved
- parties resources
- complexity
- importance
Non-party cost order
Court MAY require third party to contribute to costs if:
1. 3rd party funds case; and
2. 3rd party controls or stands to benefit from case
Security for cossts
Court MAY require C to pay sum into court on account of costs where:
- Ground
- Resides in Non-Hague
- Moving Assets
- Impecunious company (genuine reason to beleive unable to pay) - Just in all circumstances
- Inability caused by D?
- Could C continue claim?
- C’s claim legitimate?
- Promptness
Adverse costs order for refusing to engage in ADR
Court MAY make an adverse costs order if party unreasonably refuses to engage in ADR. The court should have regard to the following facts:
- Nature of dispute
- merits of case
- whether other settlement methods attempted
- cost of ADR disproporionate?
- Does ADR have prospect of success
Extend limitation period for PI / FAA
Court MAY extend limitation period if equitable to do so
Consider
- Conduct
- Reasons for delay;
- Effect of late claim on evidence
Extend deadline for service of claim form
Request pre deadline:
1. Good reason for delay
App post deadline:
1. Exceptional Circumstances (not C’s fault)
2. Denton Factors
3. Promptness
Extend deadline for filing defence
Pre-deadline: MAY if just and proportionate
- Reasons
- Impact of extra time
- Promptness
Post deadline: App for releif from sanctions. Denton
1. Seriousnesss and Significance
2. Good reason
3. Interests of Justice
Relief from sanctions
MAY grant relief. When exercising discretion, court should have regard to Denton Factos:
1. Seriousness and Signfnance (future hearing date at risk?)
2. Good reason
3. All circs to ensure matter dealt with justly and at proportionate cost
Court Permission to serve claim form
Court permission required if (1) not submitted (2) not present (3) no jurisdiction clause.
Court MAY grant permission if:
1. Ground
- Contract: made here, governed here, breach here
- Tort: breach here
- Injunction and act here
- Other party here
- D is domiciled here
- C has a reasonable prospect of success
- E&W is the proper place. Means natural place to bring proceedings. Natural place
- D’s domicile
- Governing laww
- location of witnesses
Add / remove a party
Within LP:
1. Desirable having regard to OO and IoJ
Outside LP: MAY permit if:
1. LP current when proceedings issued
2. Addition is necessary. Necessary in 3 circumstances:
- Genuine mistake
- Claim cannot proceed withiout addition
- new paty is trustee in bankruptcy / PR
Amend SoC
Pre LP expiry:
1. shows some prospect of success; and
2. Furthers OO / IoJ (stage of proceedings / impact on other parties)
Post LP expiry. Only if specified amendment:
- correct genuine mistake
- alter capacity parties act
- new claim arises out of substantially same facts as existing claim
Request for further information
Court MAY order OS clarify / provide information if:
- Request in writing first + waited reasonable time for response; and
- Info is reasonably necessary and proportioante to enable A to prepare their case or understand their case against them
- Necessary to prepare case because..
- Necessary to understand case because…
- Proportionate because… (e.g. amount / importance / prompt)
Allocation hearing
Cases can be allocated to 1 of 4 tracks
Allocation is determiend by financial value of claim (disputed amutn + VAT) as well as additional factors such as length of trial and expert evidence
Small claim: £10k or less
Fast track: £25k or less + less than 1 day + Max 1 oral expert per party per field in max 2 fields
Intermediate track: £100k or less + 3 days max + max 2 oral experts per party + 3 parties max
Multitrack: everything else
Permissionto rely on expert report
Court has a duty to restrict evidence to that which is reasonably required to resolve the issues in dispute.
Court MAY permit Expert Report if it is necessary to decide on issue in dispute
- consider OO (value of claim, complexity, parties’ means, likely cost)
SJE will be appointed unless good reason (or multi-track)
Permission for expert to give oral evidence
Court MAY permit expert to give oral evidence if IoJ
Permission to amend witness statement
Court MAY permit amendment if good reason (e.g. fact arose after served)
Request inspection / challenge refusal to permit inspection
GR: May only refuse inspection if a document if
1. privileged,
2. Lack control or
3. disproportionate to allow inspection (marginal relevance / difficult or expense of search)
Legal Advice Privilege
1. Confidential comm
2. Lawyer adn client
3. Dom purpose of legal advice
LItigation Privilege
1. Confidential comm
2. Layer, client or 3rd party
3. Dom purpose to obtain advice, evidnece or infomration
4. Litigation reasonably in prpsect
Without prejudice
- genuine attempt to settle
NOT WAIVED: exchanged mention in court or agreement
Specific Disclosure
Legal Test:
* Court has the power to make an award for specific disclosure
* Specific disclosure is an order that requires a party to disclose documents specified in the order
* Court MAY make an order for documents if documents may enable A to advance its case or damage R’s case OR lead to a train of enquiry which may enable A to advance its case or damage R’s case
- court should consider all circumtances including OO
* If docs should already have been disclosed under standard disclosure, hte court will usually order disclosure of them
Submissions:
1. Court shoudl make order because they should have been disclosed under standard disclosure…
2. Court should make an order because has power to make order (docs woudl enable A to advance thier case / damage OS or lead to a train of enquiry which woudld enable A to advance their case / damage OS case
3. Court should make an order becuase it would further OO and be in teh interests of justice
