SQE2 Advocacy - Dispute Resolution

These flashcards cover key legal concepts and procedural rules based on provided lecture notes, aimed at assisting with exam preparation.

What is the overriding objective of the court?

To enable the court to deal with cases justly and at a proportionate cost.

Under CPR 13.2, when must a default judgment be set aside?

If the judgment was wrongly entered because the deadline for AoS/Defence had not expired.

What are the conditions under which a discretionary set aside of a default judgment may occur?

1. A defendant has a real prospect of successfully defending the claim or another good reason exists for setting aside the judgment; or

2. There is some other good reason why judgment should be set aside or varied or D should be allowed to defend the claim

   court will also consider promptness of application

   you should also apply the relief from sanctions Denton case

In Denton relief from sanctions, what three aspects should the court consider?

(A) Seriousness of the failure, (B) Why the default occurred, (C) All circumstances for just case management.

What is required for a summary judgment application under CPR 24.2?

1. The claimant or defendant has no real prospect of succeeding

2. there is no other compelling reason for the case to be heard at trial.

What is the test for specific disclosure?

1. Is it reasonable and proportionate for the requested docs to be disclosed?

2. Are the documents relevant to facts in dispute?

3. Do you have reasonable grounds for believing documents exist?

4. Are the requested documents focused and specific and not to vague?

What documents must be disclosed under standard disclosure?

1. Documents on which a party relies

2. Documents which adversely effect their own case

3. Documents which adversely effect another party’s case

4. Documents which support another parties case

   note: party is required to undertake a reasonable search

When will the court allow service of a claim form by alternative method?

If standard method is not available or suitable and there is good reason why an alternative method should be allowed

What conditions must be satisfied for an interim payment to be awarded?

1. Defendant admits liability,

2. claimant has obtained a judgment for damages to be assessed,

3. or court believes claimant would obtain a substantial judgment.

Evidence must be provided to support the claim for an interim payment.

What is the three part test for interim injunctions under American Cyanamid?

1. Is there a serious question to be tried? (Yes)

2. Would damages be an adequate remedy? (No)

3. Where does the balance of convenience lie? (Granting an injunction would cause less harm to the respondent than not granting one would be to the applicant)

What is the significance of CPR 1.1(2)(c) in case management?

It mandates that the court deals with the case proportionately to its value and complexity.

What factors should the court consider in security for costs?

should be based on a belief that the claimant is unable to pay their costs if the claim fails

1. one or more of the below conditions are satisfied

   a. C is a resident out of the jurisdiction and EU

   b. C is a company and there is reason to believe it will be unable to pay D’s costs if ordered to do so

   C. C has dealt with its assets in a way that would make enforcement of a costs order difficult

2. Having regard to all the circumstances, is it just to make an order?

When will the court allow an amendment of statement of case before expiry of limitation period?

Will apply interests of justice case and

1. Not unfairly prejudice other party

2. Necessary to clarify issues in the case

3. Application is made promptly

When will the court substitue or add a party after expiration of limitation period?

1. Only if it arises out of same or substantially the same facts as existing claim;

2. Correcting genuine mistake as to name;

3. Or altering capacity in which claimant claims

What is the default position regarding costs in legal proceedings?

The losing party pays the costs of the winning party unless the court orders otherwise.

Under CPR 44.2, what should the court consider when allocating costs?

• The conduct of the parties before and during proceedings and whether they acted reasonably.

• the costs must be reasonable and proportionate to the matters in issue

What is required for setting aside a summary judgment?

1. C or D has real prospect of succeeding in their case/defence; and

2. There is a compelling reason why the case should be heard at trial.

On what grounds can the court strike out a claim?

1. No reasonable grounds to bring or defend the claim

2. Abuse of process

3. Failure to comply with rule or court order

What should a solicitor argue when trying to dismiss an application for an extension of time for exchange of witness statements?

1. Witness evidence should be exchanged now or the other party should be prevented from relying on it

2. If the court grant an extension of time, it should only be for the statement of one individual

When should a claim be allocated to the small claims track?

when the amount in dispute does not exceed £10,000

When should a claim be allocated to the fast track?

• more than 10k less than 25k

• no more than one day hearing

• only one expert per party in more than two fields

When should a claim be allocated to the intermediate track?

• more than 25k but less than 100k

• no more than 3 day hearing

• two experts per party

When should a claim be allocated to the multi track?

• more than 25k (usually more than 100k)

• complex cases requiring more than one day hearing

When will the court consider an application to adjourn a hearing?

If it is exceptional circumstances

Set out:

• parties conduct and reason for delays

• consequences of the delays can be overcome

• the extent to which a fair trial would be jeopardised by the delays

• consequences of the delays

What is the basic rule on costs?

The court has broad discretion to award costs

Starting point is loser pays costs

What is the test to obtain default judgment?

1. The defendant has not filed AoS or defence

2. The time for doing so has expired

When may the court strike out a statement of case?

1. The SoC discloses no reasonable ground for bringing or defending the claim

2. The Soc is an abuse of the court’s process; or

3. There has been failure to comply with a rule, practice direction or court order