Under Denton what the three factors the court must consider when deciding whether the grant relief from sanctions?
- Assess the seriousness/significance of the breach;
- Consider why the default occurred;
- Should relief be granted under the overriding objective
What is the definition of “seriousness of a breach” for assessing relief from sanctions?
A breach is serious if it disrupts the litigation or threatens hearing dates.
If a breach is not serious or significant, then relief should normally be granted.
What must the court consider to determine if granting relief from sanctions is in line with the overriding objective?
- Pursue efficient and proportionate litigation, and
- Enforce compliance with rules and orders.
What are the mandatory grounds for setting aside default judgments?
- The time limits for the acknowledgement of claim/defence have not yet expired,
- The defendant has filed an acknowledgement of claim/defence,
- The defendant has applied for a summary judgment or strike out in response to the particulars of claim,
- The defendant has satisfied the whole of the claim, or admitted the claim and is within the period of required time to pay.
What are the discretionary grounds for setting aside default judgment?
- Defendant has a real prospect of defending the underlying claim; or
- There is some other good reason why the judgment should be set aside or varied; or
- Applications must be made promptly.
- The Denton requirements are met.
What is the definition of a “real prospect of success” when setting aside a default judgment?
Real prospect is a higher bar than merely an arguable defence.
The court should not conduct a mini-trial but should critically analyse the evidence.
What are the “other good reasons” for setting aside a default judgment?
- The applicant has been misled by the claimant that they would not / would not continue to pursue the claim;
- The claimant failed to provide a response pack with the particulars of claim;
- The claim raises an issue of public interest that should therefore be considered in a full hearing.
What further requirements must be met for the court to set aside a default judgment on a discretionary ground?
Applications must be made promptly.
The Denton requirements:
- Assess the seriousness/significance of the breach;
- Consider why the default occurred;
- Should relief be granted under the overriding objective.
What are the two requirements needed for the court to grant a summary judgment?
- The respondent has no real prospect of success in their claim/defence; and
- There is no other compelling reason for a trial.
What is the definition of “no real prospect of success” when granting a summary judgment?
The respondent only needs to show some genuine (even if improbable) chance (more than fanciful/imaginary/false).
What are the “other compelling reasons” why a court may refuse to grant a summary judgment?
- The respondent needs more time to properly make their case,
- The need for expert evidence,
- The presence of other parties in the claim,
- The respondent needs more time to properly scrutinise documents,
- The respondent is a defendant who has the right to a jury trial (e.g. in a fraud case).
What are the three grounds under which the court may strike out a statement of case?
- It shows no reasonable grounds for bringing/defending the claim;
- It is used as an abuse of process / obstructing justice;
- The party has failed to comply with a rule, practice direction, or court order.
What is the definition of there being “no reasonable grounds” for bringing or defending a claim when striking out a statement of case?
A statement of case may be struck out if it discloses no claim or defence as a matter of law.
E.g. A bare denial without reasons.
What is the additional requirement that must be met for a statement of case to be struck out because of a party’s failure to comply with a rule, practice direction or court order?
Strike out is unlikely if a fair hearing remains possible, as lesser sanctions are preferred.
What are the consequences of a statement of case being struck out?
When a statement of case is struck out, the other party can generally obtain judgment with costs by filing a simple request at court.
What must the applicant prove for the court to grant an interim injunction?
The applicant must prove it would be just and convenient.
What are the American Cyanamid Co v Ethicon Ltd factors the court considers when granting an interim injunction?
- Whether the underlying claim is genuine (not frivolous/vexatious);
- Whether damages would be a fair remedy for the applicant if wrongly refused;
- Whether damages would be a fair remedy for the respondent if wrongly granted;
- Which outcome has the least risk of injustice?
When will damages for the applicant be an inadequate remedy, meaning the court should grant an interim injunction?
Damages will be inadequate if the harm caused by the respondent is irreparable/unquantifiable, or the respondent is unable to pay
When will eventual damages at trial for the respondent be an inadequate remedy, meaning the court should not grant an interim injunction?
Damages will be inadequate if the restriction of the respondent’s freedom to act causes harm which is irreparable/unquantifiable, or the applicant is unable to pay.
What are the two overall requirements for a security for costs order?
- One or more prescribed conditions are met; and
- It is just in all circumstances to do so (discretionary element).
What are the five prescribed conditions for a security for costs order?
- Claimant resides outside a Hague Convention 2005 state;
- There is reason to believe a claimant company will be unable to pay the defendant’s costs if ordered;
- Claimant has taken steps to make enforcement difficult;
- Claimant has changed/failed to provide an address on the claim form;
- Claimant is a nominal claimant, and there is reason to believe it will be unable to pay the defendant’s costs.
What is the court’s main concern under the discretionary limbs for making an order for security for costs?
Whether the claimant/respondent can realistically comply with the order (order doesn’t undermine access to justice).
What are the factors for the discretionary limbs for making a security for costs order under Sir Lindsay Parkinson v Triplan?
- A defendant’s admission of liability or open offers of damages;
- Any delay by the defendant in making an application;
- The strength of the claim (less likely to grant an order for security, the stronger the claim);
- If the defendant caused the claimant’s financial difficulty;
- If the application is being used oppressively or to stifle the claim.
What are the three possible conditions under which an interim payment can be ordered?
- Defendant has admitted liability to pay damages/fixed sum to the claimant.
- Claimant has obtained a judgment against the defendant for liability to be decided.
- Court is satisfied claimant will obtain a judgment for a substantial amount at trial.
