SGS 4 Flashcards Preview

Civsy > SGS 4 > Flashcards

Flashcards in SGS 4 Deck (27):
1

Interim applications: Documentation: Part 23

Application notice (App N) (N244)
which states what order is sought and briefly why r.23.6
Draft order (if complex and if one was attached to App N)
Supported by written evidence, which can be:
in a witness statement (this is the usual method)
in an affidavit (sworn witness statement - rare, other than for freezing orders)
on the application notice (if with a statement of truth) r. 32.6(2)(a) and see WB para 22.1.14 and r.22.1(3)
in a statement of case
skeleton argument
application bundle
statement of costs
See also: WB commentary para 25.3.3 for evidence provisions

2

When can an application be made without notice

if exceptionally urgent
to further the overriding objective
if all parties consent
with the court’s permission
when there is already a hearing date
When permitted by an order, rule or PD
PD23A, para 3
when there is a good reason for not giving notice: r.25.3
but, unless secrecy is essential, informal notice should be given: WB commentary 25.3.2

3

Time Limits for filing evidence:

App Notice served as soon as practicable after it is filed: r 23.7(1)
In any event, at least 3 days before hearing r.23.7(1)
Written evidence, must be served at the same time r.23.7(3)

4

How are notice periods calculated?

days = clear days: r. 2.8(2)
excludes the day the period begins and the day the event occurs: r 2.8(3)
3 clear days is less than 5 clear days (!), so Saturdays, Sundays, Christmas Day or Good Fridays and other Bank holidays are also excluded: r 2.8(4)
See examples at r 2.8

5

Summary judgment test : Q 2(a)

D has no real prospect of successfully defending the claim; [1 mark]
and
there is no other compelling reason why the case should be disposed of at trial [1 mark]
Exact words required
r 24.2

6

Real prospects of success

Real as opposed to fanciful: Swain v Hillman [2001] 1 All ER 91
Real means a case which is better than merely arguable, a case which carries a real conviction: ED&F Man Liquid Products Ltd v Patel [2003] CP Rep 5
may be fanciful if entirely without substance: Three Rivers DC v Bank of England (No 3) [2003] 2AC 1 [para 95]
may be fanciful if contradicted by contemporaneous documentation: [para 95] Three Rivers
no real prospects: the absence of reality: Three Rivers etc WB 24.2.3

7

2(b): stage for applying for SJ

No, summary judgment cannot be sought at this stage (½ mark)
(ii) because D has not acknowledged service (½ mark)
Maximum 1 mark
r 24.4(1)(b)

8

Summary Judgment: When?

Pre-action Protocol (if any)
Issue claim form
Serve claim form and PoC
Defendant Ackn Service (Ack S) or files and serves Defence (Def)
Claimant or Defendant can apply for summary judgment (or court)
So, not until after Ackn S has been filed, but you could wait until after Def has been filed: r 24.4(1)
Most sensible time: between D filing Ack S and C filing its directions questionnaire: WB 24.4.1

9

2(c): Suitable for SJ?

This is a suitable case for summary judgment (no mark) because
(i) This is a simple debt claim / money claim [½ mark]

(ii) There is no apparent defence / nothing to suggest Defendant has a “real prospect of success” [½ mark]
Maximum 1 mark

10

2(d) Order likely to be made on SJ here

The application for summary judgement is likely to succeed. This can be expressed as:
(i) Judgment on the Claim; or [1 mark]
(ii) Judgment for the Claimant in the sum of £16,000 plus costs [1 mark]
Maximum 1 mark

11

Possible but not probable that defence will succeed: what order? 2(e)

The judge may make a conditional order [1 mark]
In relation to the partial defence [0.5 mark]
Likely to be summary judgment for the part not in dispute [0.5 mark]
Maximum 2 marks
A conditional order is the usual outcome when summary judgment would be ordered but for a nagging doubt that there just might be something in what the D says: PD 24 paras 4 and 5
Conditional order is the key concept here. But Wanderlust has, has, at best, only a partial defence; the conditional order applies to that.
If there were 2 marks available, these are the points you could make.

12

Summary Judgment v Default Judgment

Sum Judgment: Test = No real prospect of success and no other compelling reason for a trial. Burden on Applicant.
Judicial act - disposal on the papers and submissions (no live witness evidence); but D is participating (either filed Ack S or Def)
Compare with: Default Judgment: administrative act, when D has not responded to the PoC – D played no part in the process
Both are judgment without trial

13

When is Summary Judgment not available?

see r 24.3
no restrictions against a C
against a D
possession proceedings of residential property against a mortgagor or a protected tenant under RA 1977 or HA 1988
proceedings for an admiralty action in rem

14

Who may apply for Summary Judgment?

a C: to speed up the obtaining of judgment in a defence without merit
or a D to attack a weak claim
or it may be used by the court of its own initiative
see APA Civil 24.01 - 24.02

15

Procedure for summary judgment

Application notice stating that summary judgment is sought supported by written evidence/a witness statement
Application notice and any evidence to be served at least 14 days before the hearing
D’s evidence in reply to be served at least 7 days before the hearing
Any further evidence by C at least 3 days before the hearing

For Revision - sources: r. 23 6, r. 24.4 and r. 24.5, PD 24 para 2, see: WB 24.5.3

16

The court’s approach to written evidence

Where to look:
WB 24.3.3: a summary judgment application is not a mini trial
WB 24.2.5
APA Civil: 23.58 and 24.20-24.22

17

Outline: the tests for these interim applications

Setting aside default judgement
Summary judgement
Interim payment

1. D has a real prospect of success( ie real, not fanciful) or there is some other good reason to do so.
Burden on D.
r.13.3

2. R has no real prospect of success in his claim/defence and there is no other compelling reason why case should be disposed of at trial.
Burden on A.
r. 24.2

3. If claim went to trial, C would recover substantial damages
Balance of probabilities
Would, not might
Burden on A
r. 25.7

18

Counterclaims and Set offs (1)

Any claim by D against C can be pleaded as a Counterclaim (c/c).
Counterclaims are not restricted to money:
need not be connected with claim
can be for any form of relief
Counterclaim is not a defence to the claim unless it is a set off.
All set-offs are counterclaims, but not all counterclaims are set-offs.
See: r 16.6 – defence of set off

19

Counterclaims and set-offs(2)

If D’s only answer to the Summary Judgment appn is a counterclaim, court will enter Summary Judgment and D must bring his c/c by separate proceedings
But not if c/c is a set off: this operates as a defence
Complete defence if value of set off matches or exceeds claim
Partial defence if set off has value less than claim; Summary Judgment then entered for undisputed balance
If c/c not a set off, but linked: possibly Summary Judgment but with a stay pending determination of c/c WB para 24.2.6
See: APA Civil 24.30

20

Nature of Set off

Set off can only arise where
C is claiming money
D counterclaims a sum of money from C
Set off must usually be connected to or arise out of the claim – note specific categories recognised by the courts
A recognised set off is a defence to the claim (if successful)
A set off can be defence to part or all of claim, depending on amount, and so, Q: is set off less than the value of C’s claim?
If set off is greater than value of C’s claim
(i) the set off is complete defence (if successful);
(ii) D can recover the difference on his Counterclaim

21

Categories of Set Off

Mutual debts: owed between C and D. (Note: This type of set off can be unrelated to the facts of the claim.)
Price of goods sold. Counterclaim for breach of SGA implied terms is a set off: s.53.
Price of service delivered. Counterclaim for damages for poor workmanship is a set off.
Claim by a tenant for damages for breach of covenant in lease is a set off, where Landlord is claiming arrears of rent under same lease.
Equitable set-off. “Inseparably connected”.
See: APA 14.32- 14.38 on Counterclaims and set offs

22

Question 4: The cheque ruleFast Lane Car Sales

(a) Which cause of action?
They should sue on the dishonoured cheque
There is no defence to a bad cheque ie there can be no answer to a claim based on a bad cheque
Because a cheque is equivalent to paying cash
WB commentary 24.2.7; APA Civil 24.31

23

Fast Lane Car Sales (b): summary judgment?

If they sue on the dishonoured cheque,
there is no defence, and so they are likely to get summary judgment for £15,000.

24

Summary judgment if sue on the contract?

If they sue on the contract for the price of the car
Stephen will counterclaim(c/c) for £7,000, the cost of repairing the defects
This c/c will operate as a set off
As he will be alleging breach of the implied term as to satisfactory quality under s 14 Sale of Goods Act
S 53 SoG Act, this amounts to a set off
Best result Fast Lane Car Sales could achieve: summary judgment for £8,000; application for SumJ of the balance will be dismissed

25

MCQ on Summary Judgment

Consider the following which are a judge’s conclusions on 5 different summary judgment applications:

She considers the defence is fanciful
She thinks it possible that the defence will succeed at trial, but not probable
She considers there is an absence of reality in the Defendant’s case
She has decided a point of law in favour of the Defendant’s case
She considers that a full investigation of the facts is required to determine the merits

26

Summary judgment if sue on the contract?

If they sue on the contract for the price of the car
Stephen will counterclaim(c/c) for £7,000, the cost of repairing the defects
This c/c will operate as a set off
As he will be alleging breach of the implied term as to satisfactory quality under s 14 Sale of Goods Act
S 53 SoG Act, this amounts to a set off
Best result Fast Lane Car Sales could achieve: summary judgment for £8,000; application for SumJ of the balance will be dismissed

27

ANSWER [C] and reasons

(i) If the defence is fanciful, it does not have real prospects of success, SJ will be granted
(ii) This describes the circumstances when a conditional order can be made: PD24, paras 4.2 and 5.2; SJ will not be granted.
(iii) If there is an absence of reality in the D’s case, then he does not have real prospects of successfully defending: SJ will be granted
(iv) If a point of law has been decided in favour of the D, the D has real prospects of successfully defending: no SJ
(v) If a full investigation of the facts is required to determine the merits, this is a compelling reason why the case should be disposed of at a trial: no SJ