When can a claimant enter default judgment?
When the defendant fails to respond
No Acknowledgment of Service within 14 days or no Defence within 28 days.
When must the court set aside a default judgment?
The court must set it aside if the default judgment was wrongly entered.
When may the court set aside a default judgment on discretionary grounds? And what will the court also consider?
a) If the defendant has a real prospect of successfully defending the claim
b) there is some other good reason to set aside the judgment or allow the defendant to defend
The court will also consider whether the application was made promptly and the Denton test
What is the test for summary judgment?
Summary judgment may be granted if:
1) The claimant or defendant has no real prospect of succeeding or defending AND
2) there is no other compelling reason case should be disposed of at trial
What is the three-stage Denton test for relief from sanctions?
1) Seriousness and significance of the breach
2) Why the default occurred
3) All the circumstances including efficient litigation at proportionate cost and enforcing compliance with rules and orders e.g. whether trial date could still be met, effect failure to comply and granting relief would have on each party
What must be shown to obtain permission to serve a claim form out of the jurisdiction?
The claimant believes the claim has a reasonable prospect of success and England & Wales is the proper place to bring the claim.
What is the test for an interim prohibitory injunction?
- Serious question to be tried - strength of case
- Are damages adequate (for either side)
- Applicants cross-undertaking (promise to pay respondent for losses if injunction should not have been granted)
- Balance of convenience - which course of action will cause the least harm to the parties involved
What additional requirements apply if an interim prohibitory injunction is sought without notice?
1) The applicant must give full and frank disclosure
2) Show urgency or a need for secrecy
What is the test for an interim mandatory injunction?
The court requires clear evidence that the claimant is likely to succeed at trial.
When can the court order an interim payment?
Court can order interim payment only if gateway met:
a) Defendant has admitted liability
b) Claimant has obtained judgment
c) If claim went to trial, claimant would obtain judgment (1) for substantial amount other than costs (2)
What limitation applies to the amount of an interim payment ordered by the court?
It must not exceed a reasonable proportion of the likely final judgment and must account for contributory negligence or set-off.
Under (c) for interim payment, what needs to be satisfied?
1) Court is satisfied if the claim went to trial, the claimant would obtain judgment
2) Court is satisfied if the claim went to trial, claimant would would obtain judgment for a substantial amount of money (other than costs)
3) Appropriate to exercise its discretion to make an order e.g. application isn’t too close to trial, would not delay / prejudice conduct of trial, not too small an amount
When may the court order security for costs against a claimant?
Test: Court may order if:
- It is satisfied, having regard to all circumstances of the case, that is just to make an order
- One condition applies (e.g. claimant abroad, company unable to pay, claimant has changed their address to evade litigation, taken steps that would make it difficult to enforce an order for cost, nominal claimant that won’t be able to pay defendant’s costs)
What factors will the court consider when deciding if security for costs is just?
Factors the court will take into account whether it’s just:
1) Strength of the claim
2) Whether alleged the impecuniosity was brought about by conduct of the defendant – claimants will usually argue reason they lack financial resources
3) The application should be made promptly
When can a party amend a statement of case before service?
Before service a party may amend without permission.
When can a party amend a statement of case after service?
After service a party may amend only with written consent of all parties or permission of the court.
What test does the court apply when deciding whether to allow an amendment to a statement of case?
Whether allowing the amendment accords with the overriding objective of dealing with cases justly and at proportionate cost.
When are general amendments allowed after the limitation period has expired?
- Arises from same/substantially same facts
- Corrects mistake as to name
- To alter capacity in which an existing party claims e.g. changing to executor of estate
When can the court add, substitute or remove a party within the limitation period?
Where the claim cannot properly be carried on without that party.
When can the court add or substitute a party after limitation has expired?
- Original party named by mistake
- Original party has died / subject to bankruptcy order
- Claim can’t be crarried on without addition of a new party
What documents must be disclosed under standard disclosure?
Documents a party relies on, documents that adversely affect any party’s case, and documents that support another party’s case.
When can a party apply for specific disclosure?
Where another party has failed to comply with their disclosure duty, such as where a document an applicant would reasonably expect to see has not been disclosed.
What must an applicant show when seeking specific disclosure?
The likely existence of the document and its relevance or importance to the issues in the case.
When will the court order non-party disclosure?
Test: Documents likely to:
* support one party or harm another; and
* necessary to dispose fairly or save costs.
