SQE2 Disputes Resolutions all applications

Question 1

Application for Summary Judgement

Answer 1

Asks court to enter judgment for applicant without proceeding to trial

Time
- only after acknowledgement of service

Test
- other party has no real prospect of success; and
- there is no compelling reason why case should proceed to trial

Question 2

Application to set aside/vary default judgment (when court CAN)

Answer 2

Default judgement is entered into if defendant fails to file defence in time

1. Application is made promptly; AND
2. they have a real prospect of successfully defending the claim; OR
3. there is some other good reason why judgment should be set aside/varied ; or defendant should be allowed to defend a claim

Question 3

Application to set aside default default judgment (when court must)

Answer 3

A court MUST set it aside if:

1. Judgement was entered before expiry of time to respond;
2. Claim has already been paid or settled;
3. Judgement was entered whist the defendant’s application to strike out or obtain summary judgement was pending
4. Judgement was entered whilst defendant’s request for time to pay was pending

Question 4

Applying for Security for Costs Order

Answer 4

DEFENDANT ONLY

1. Court is satisfied that having regards to all circumstances it is just to make order; AND
2. Claimant:
   - is resident outside of jurisdiction (not Brussels contracting state);

• is company or other body and there is reason to believe that it will be unable to pay costs if ordered to;
• has changed address since claim commenced with a view to evade consequences of litigation;
• failed to give his address in the claim form, or gave an incorrect address in form;
• is acting as nominal claimant and there is reason to believe they will not be able to pay costs if ordered; or
• has taken steps in relation to assets that would make it difficult to enforce an order for costs.

Question 5

Application for prohibitory injection

Answer 5

Court has discretionary power to grant if:
- there is a serious question to be tried;
- damages would not be an adequate remedy for loss; and
- the balance of convenience lies in favour of injection.

If appropriate
- can offer cross undertaking in damages

Question 6

Application for unless order

Answer 6

Court has discretionary power

Must show:
- other party has breached a court order;
- you have complied with the order; and
- order would be in interest of overriding objective to enforce court orders and deal with cases fairly justly and proportional to costs.

Question 7

Application to strike out claim

Answer 7

Court has discretionary power if applicant can show either:

1. the statement of case discloses no reasonable grounds for bringing/defending claim;
   - doesn’t show breach of law
   - defence is bare denial
2. the claim/defence is an abuse of process
   - means use for purpose or in way which is significantly different form ordinary and proper use of court process
   - whole sale disregard of rules
   - bringing successive related actions against same defendant
   - attempting to re-litigate
   - deliberately delaying the prosecution
   - over/under valuing claim
3. there has been a failure to comply with court order, procedural rule or payment of court fees

Question 8

Application for relief from sanctions

Answer 8

EG if you have had claim struck out, financial sanctions etc.

Question 9

Application to stay proceedings

Answer 9

Court discretion to further overriding objective (deal with case fairly, justly and proportionately)

Argue/show that:
1. why adjournment/stay is necessary

2. Why it is in the interest of overriding objective
3. that application has been prompt after need has arisen

Question 10

Application at Track Allocation Hearing

Answer 10

At discretion of judge using the court’s case management powers

1. Set out facts of case
2. Refer to the factors considered in track allocation
   - value
   - does it involve protected party
   - does it involve personal injury
   - is it complex
3. Give Track recommendation

Question 11

Application for interim payment

Answer 11

Discretionary power under CPR

Claimant to show:

1. Defendant has filed Acknowledgement of Service
2. Establish one of conditions:
3. Explain what payment will be used for
4. Request specific sum / instalments
5. Demonstrate sum is reasonable
6. Address the court (if appropriate) on:
   - contributory negligence
   - set off
   - counterclaim

Question 12

Conditions for interim payment

Answer 12

1. D has admitted liability
2. C has obtained judgment
3. if claim went to trial, C would obtain judgement for substantial amount of money against defendant
4. specific conditions for an order for possession of land
5. 2 or more defendants then: court is satisfied that, if the claim went to trial, the claimant would obtain judgment for substantial amount against at least one of the defendants
   - defendants are insured; or
   - public body