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Flashcards in Major tests Deck (70):

Default Judgment

D has not filed AS or D AND
Time for doing so has expired

- Request - As of right for money
- Application - for equitable: such judgment as it appears to the court that the claimant is entitled to on his statement of case.



As of right - where wrongly entered
Discretion otherwise based on:
- real prospect of success OR
- some other good reason to dispose of at trial
(noting promptly)


Summary Judgment

No real prospect of success AND
no other compelling reason to dispose of at trial



Either: Discloses no reasonable grounds for bringing/defending the claim OR
Abuse of Process OR
Non-compliance with rules / PDs / orders


Relief from Sanctions

r3.9 - deal justly with the application in all the circs of the case noting need:
- for litigation to be conducted efficiently and at proportionate cost AND
- to enforce compliance w. rules / PDs / orders
Mitchell/Denton stages:
- serious/significant failure to comply
- good reason for defualt
- all the circumstances so as to deal justly


Extension of Time for compliance (by application)

If 'reasonable' will be granted unless will cause 'prejudice' to the other party OR risk imperilling hearing date


Extension of Time (by agreement)

Always permitted except for unless orders where:
- only up to 28 days
- in writing
- agreed before expiry of original date
- not putting hearing date at risk
- court hasn't ruled otherwise


Variation/Revoking of an Order

Only where:
1) Material change of circumstances;
2) Misstated factual basis; OR
3) Manifest mistake in formulation


Contract limitation runs

From accrual of cause of action to date claim brought.


PI Limitation begins with

Date of knowledge (actual or constructive) of:
- relevant damage
- attributable to negligence
- ID of D
(not knowledge of law)


Extension of Time in PI

Equitable discretion based on balance of prejudice in all the circumstances and with regard to factors:
- Length and reason for delay
- whether C acted promptly
- Steps taken by C to obtain expert advice (legal/medical/other) and nature of that advice
- Conduct of D after cause arose
- Duration of any disability
- Whether delay has reduced cogency of evidence


Latent Damage extension

Only in tort, runs for 3yrs from date of knowledge of material facts required for bringing case

N.B. Long stop at 15yrs


Limitation for children/unsound mind

Children: 3 years from majority
Unsound: no limitation unless recover


Limitation for fraud/concealment/mistake

Where fraud/concealment of any relevant fact, limitation runs from actual/constructive knowledge

For mistake runs from point mistake is discovered (or could have been discovered with 'reasonable diligence')


Alternative service permitted

Where 'good reason'


Litigation friend suitability

- Can 'fairly and competently conduct proceedings' on behalf of child/rptoected party; AND
- No adverse interest

PLUS (if child/PP is C)
- willing to undertake to pay any costs ordered


Joining of causes of action

Single claim form for all claims that can be "conveniently disposed of in the same proceedings".


Joining an Intervener

Permission always required to join after issue of claim form.

Intervener may be added where:
- presence is desirable to ensure all matters in dispute can be resolved OR
- issue between intervener and existing party and it is desirable to determine that issue at the same time


Substituting Parties (before limitation)

Where existing party's interest has passed to a new party AND
it is desirable for the resolution of all the matters in the dispute.
(w/o notice App w. evidence)


Security for Costs

Must be satisfied that just, in all the circs of the case.

Respondent must be a C AND
either normally resident outside of EEA OR
a company/LLP that is unable to pay D's costs

- overriding obejctive
- 'proportionate protection' to the risk
- Merits (ONLY where 'high degree of probability of success/failure')

Extent of security:
- such amount as judge thinks firt
- no more than reasonable proportion


Statutory Interest remitted

Where by reason of any conduct the interests of justice require it


Nominal Damages

Where damage not an essential element of claim
N.B. winner pays costs


Aggravated Damages

Due to D's 'objectionable behaviour'
N.B. not for companies OR in Clin Neg
(not available in contract)


Exemplary Damages

To show Court's disapproval of D's behaviour where:
- oppressive, arbitrary, unconstitutional
- calculated breach
- authorised by statute
(not available in contract)


Injunctions general test

Just and Convenient


Specific Performance

C must show:
- willing and able to perform obligations
- not a contract that cannot be enforced
- legal remedy inadequate

Not available for
- misrep
- where liable to cause severe hardship
-lack of mutuality


Permission to Amend (before limitation)

Generically assessed on basis of whether in accordance with overriding objective.
- generally allowed if just and proportionate (having regard to stage of proceedings and extent of amendment) BUT
- amended case must have reasonable prospect of success


Permission to Amend (after limitation)

General rule: not allowed
1) Original set-off or CC
2) Court exercises PI discretion
3) New claim arises out of 'the same or substantially the same facts as already in issue'


Substituting Parties

Count as new claims
Before limitation: where 'desirable'
After limitation: where:
- CPR compliant AND
- 'necessary'

(typically because of mistake or because claim cannot be carried on w/o change in parties)


Amendments affecting accrued limitation rights

Not allowed UNLESS:
- party seeking to amend not at fault AND
- innocent party already knew the facts introduced by the proposed amendment


Request for Information

Must be:
- concise
- confined to areas which are reasonably necessary and proportionate
(so as to enable party to prepare his own case or understand case to be met)


Dispense with notice for interim application

Only where
- exceptional urgency
- overriding objective furthered by it
- consent of all parties
- court grants permission
- hearing has already been fixed for another purpose
- court rule/PD/order permits


Conditional Order

On summary judgment application where appears 'possible but improbable' that claim/defence will succeed
- pay in money OR
- take some step
w. automatic strike out on non-compliance



Arise in 3 cases:
- Mutual debt
- Supply contract set-offs
- Equitable set-off


DQ Default

CC Money - 7 day warning, auto strike out
HC Specified Sum - such as it considers appropriate (directions/CMC/Strike out)
Other - no specific sanction


Lawyer at CMC

Must be familiar with case AND
have authority to deal with issues likely to arise
If an "inadequate lawyer" attends then wasted costs


Variation of directions

Permitted with consent between the parties except where involves change to 'key dates' in court diary or where order carries sanctions in default (DQ, PTR, CMC etc.)


Costs Recovery

SCT: none unless behaved 'unreasonably'
FT: normal costs shifting
MT: costs managed unless over £10m, Part 8, or fixed costs (e.g. fast track PI)


Track Allocation

£1k or LT >£1k in which case FT)
£25k MT


Costs management order departure from costs budget

Not without good reason

>20% overspend presumed to be unreasonable or disproportionate


Disclosure definitions

Document = Anything that is recorded
Exists = in parties 'physical control'
Reasonable search is defined in relation to: number of docs, nature and complexity of proceedings, significance of docs, ease of retrieval


Standard Disclosure covers

Docs that are:
- on which party relies
- adversely affect own case
- adversely affect another party's case
- support another party's case
- required by PD

Not covered:
-Train of inquiry docs OR
- merely relevant to credit


Specific disclosure

Court considers:
- all circs
- overriding objective
- relevant of docs sought to SoC
- whether docs are or have been in parties' control


Collateral use where

Docs read in open court
Permission from other side
Court gives permission
(inadvertent disclosure always requires permission)


Norwich Pharmacal

For 3rd party disclosure where:
- arguably been wrongdoing in which A has a sufficient interest
- R is mixed up in the wrongdoing & facilitated the commission of the wrongdoing
- Real Prospect R has relevant information that can be subject of NP order
- Discretionary order based on whether necessary and proportionate in all the circumstances
(e.g. only possible source of information, actively involved in wrongdoing, can be indemnified for costs, etc.)

Not where: mere witness AND overrides Art.10 where necessary in interests of justice, national security or prevention of crime


Pre-Action Disclosure

A likely to be a party to future proceedings
R likely to be a party
Documents sought would be within R's standard disclosure obligation
Advanced disclosure is desirable for:
- disposing of the claim fairly
- assisting to resolve the dispute w/o proceedings
- saving costs

PLUS documents:
- likely to be or have been in other side's possession, custody or power AND
- relevant to the issue in the claim


Non-Party Disclosure

- Docs are known to exist and can be specified
- Docs likely to be in R possession, custody or power
- Docs relevant in that likely to support applicant / adversely affect another party
- Disclosure necessary to:
-- fairly dispose of claim OR
-- save costs


Stay for medical examination

- C refuses to undergo medical exam (or disclose records)
- Request reasonable
- C's refusal prevents the just determination of the claim


Discontinuance permission required where:

- Interim injunction in place
- Undertaking in damages in place
- Interim payment awarded (unless D gives consent in writing)
- Multiple C (unelss Cs give consent in writing)
- C under a disability


Interim Payment

After end of period for filing AS where:
(- D admitted liability / C obtained judgment for damages / C seeking an order for possession and D would be held liable) OR
- "Court satisfied that if the Claim went to trial the claimant WOULD obtain judgment against D"...
- ... for a substantial amount of money (on BoP)
(if multi-D then against one and all insured/MIB/public)
- Sum requested not more than a "reasonable proportion of hte likely amount of the final judgment" (taking into account set-off/cc/CN/CRU etc.)


Interim Injunction

- Just and convenient to do so
- Underlying cause of action
American Cyanamid:
- serious issue to be tried?
- damages adequate remedy?
- undertaking adequate?
- Balance of convenience
- Status quo
- Special factors in case
- Merits (rate)


Urgent Interim Injunctions

W/O notice: Good reason
W/O issue: "urgent" OR "necessary in the interests of justice" AND
No PD prohibiting the order


Interim injunction that disposes

Overwhelming case on the merits


Defamation claim

Rejected where defence is that substantially true/honest opinion/public interest AND
Alleged libel not obviously untruthful


Injunction to restrain publication

- C must take all practical steps to inform D of application to restrain publication
- No relief to restrain before trial unless court satisfied that case likely to succeed
- have regard to freedom of expression and public interest


Mandatory Interim Injunction

High degree of assurance


Injunction to restrain breach of covenant

Prima Facie case

N.B. restraint of trade not allowed unless reasonable in scope (activites, geographic, period)


Part 36 Offer

- In writing
- States Part 36 implication apply on face
- Specified the relevant period of 21 days during which D will pay C's cost if accepted
- State whether applies to part or whole of claim
- States whether it takes into account any counter-claim

Must be 'sufficiently precise and certain'
For PI must include CRU, gross and net sums


Permission to Appeal

Real prospect of success OR
Some other compelling reason

(Not required for habeas corpus, committal, secure accommodation order, non-judicial costs order)


Second Appeal

Real prospect of success AND either
Raises an important point of principle
Some other compelling reason


New evidence at Appeal

Interest of justice and Overriding Objective
AND Ladd v Marshal
- Reasonable diligence could not have obtained the evidence for LC trial
- Probably have an important influence
- Evidence apparently Credible


Sworn evidence from child

Understand the natrure and consequence of an oath:
- sufficient appreciation of the solemnity of the occasion AND
- added responsibility to tell the truth above the ordinary social duty to do so


Unsworn evidence from child

Where doesn't pass sworn test but:
- understands that it his his duty to speak the truth AND
- has sufficient understanding to justify his evidence being heard


Expert called

- matter outside the ordinary experience of the tribunal of fact
- field is a recognised body of expertise governed by accepted rules and principles
- W suitable qualified to give expert testimony in field
- Party seeking to rely complies with rules including obtaining a direction granting permission to rely on evidence at trial


Legal Professional Privilege

Legal Advice Privilege covers:
- all legal advice unless fraud
Litigation Privilege covers:
- documents created for use in current or anticipated litigation
- dominant purpose for creation was use in those proceedings


Facts of Previous proceedings

Generally inadmissible where:
- criminal proceedings and acquitted
- civil claim
Generally admissible where relevant to an issue and convicted in a court or court martial of an offence (and conviction is subsisting)


Character evidence

Inadmissible unless:
- fact in issue/direct relevance OR
- relevant to credibility and used in such a Q that truth of imputation would seriously affect opinion of the court as to credibility of W

"Similar fact" character evidence if 'logically probative'


Renewal of claim form:

Difficult even pre-limitation. Only:
- in exceptional circs (e.g. D evades service)
- applying overriding objective

-alt service r.6.15
-order dispensing w. service r.6.16
-remedy technical error under r.3.10


Additional Claim factors

- Overriding objective
- Manage all claims in most convenient and efficient manner
- 3rd parties bound by decisions between C and D
- Issues involving 3rd party decided as soon as possible
- Avoid different results in different trials
- Save cost of extra trial


Overriding Objective

Dispose of cases justly and at proportionate cost:
- equality of arms
- reducing expense
- just / proportionate in relation to
-- importance
-- complexity
-- sum involved
-- financial position of parties
- expeditiously and fairly
- Allotting a proportionate share of court resources (taking into account need to allot resources to other case)
- enforcing compliance with Rules/PDs/Orders