DR Tests only

Question 1

Grounds for appeal

Answer 1

(1) Wrong in fact, law, or courts discretion
(2) Unjust due to a serious procedural or other regularity.

Question 2

Personal injury, when can a Claimant be required to pay the Defendant’s costs?

Answer 2

• Claim was fundamentally dishonest
• Claimant lost a Part 36 offer
• Claim was struck out for no cause of action/abuse.

Question 3

Time of limitation period stops running when

Answer 3

the claimant delivers the properly completed claim form, fee, and request to issue proceedings to the court.

Question 4

When do ‘clear days’ have to be used?

Answer 4

In any practice direction, judgement, or order of the court.
It means the period it begins isn’t counted, and, if it’s an event, the day on which that event happens doesn’t count either.

So service of notice that is required on Friday 20 with 3 clear days.
We wouldn’t count Monday. 3 days = Tues Wed Thur. Friday we wouldn’t count because it’s an event. so technically 5 days.

Court giving a date for the hearing must be 28 days before hearing.
So don’t count day of hearing, and dont count day of event. So tehcnically 30 days. so 1oct - 30 oct.

if its 5 days or less then weekends and banks hols don’t count

Question 5

When is it justifiable to issue proceedings without following the relevant protocol?

Answer 5

• Limitation period almost over
• Court order required to preserve evidence/assets
• Concern that D may start proceedings abroad.

Question 6

Application for disclosure of documents PRE ACTION

Answer 6

• If they would be disclosed under standard disclosure AND
• If they are necessary in order to dispose of the claim without litigation.
  (can also seek this disclosure from a non-party!)

Question 7

What is the earliest a claimant can make an application for either (1) summary judgement or (2) interim payment?

Answer 7

As soon as the defendant files an acknowledgement of service / defence / admission whichever they send through in the defence bundle to the initial statements of case.

Question 8

Test for summary judgement?

Answer 8

D has no realistic defence to the action AND
There is no other substantial reason to continue.

Question 9

When might a defendent be subject to a default judgement?

Answer 9

If they fail to file a defence within the time limits

Question 10

What is a default judgement

Answer 10

The case will be decided using only the statements of case from the Claimant, the Defendant cannot defend themself.

Question 11

How can a Defendant argue against a default judgement?

Answer 11

(1) Show that you
- Acted promptly
- Have a real prospect of successful defence
- Some other good reason why the judgement should be set-aside.

(2) The court MUST set it aside if
- the claim was already settled out of court so D didn’t bother responding
- D’s application to ‘strike out’, for ‘summary judgement’ or for ‘time to pay’ was pending
- Judgement was made before the expiry of time (by accident)

Question 12

Part 20 Counterclaim requirements

Answer 12

(1) Brought within the same set of proceedings
(2) Brought by an existing defendant
(3) Monetary claim in its own right

Question 13

When does the defendant need permission to file a Part 20 counterclaim to an existing party

Answer 13

If it’s after they have filed their defence.
If they file it at the same time they don’t need any permission.

Question 14

Part20 counter-claim against a third party

Answer 14

Monetary claim
Same facts
Third person
Can only be done by order of the court

Question 15

Under a part 20 claim, any party can make a request for further information. What are the grounds for objecting to give this information?

Answer 15

• Unnecessary, improper, irrelevant
• Responding party unable to provide that info
• Insufficient time to reply
• Disproportionate expense/time to obtain ans.
• Privileged info e.g. legal advice…

Question 16

When can a court substitute a new party for an old one?

Answer 16

• Interest/liability has shifted to the new party
• It is desirable to substitute to resolve the dispute

Question 17

Sanctions for non-compliance with the court

Answer 17

(1) Striking out (usually only if failed an ‘unless order’)
(2) Costs/sanctions
(3) Defaulting party to pay the court
(4) Disallow some evidence of the defaulting party

A party can apply for relief from sanctions.

Question 18

Examples of interim applications

Answer 18

• unless order
• set-aside a default judgement
• summary judgement
• strike out a claim
• interim payment
• interim injunction
• freezing injunction
• search order

Question 19

test for summary judgement

Answer 19

• No real prospect of success
• No compelling reason why the case should proceed to trial

Question 20

test for striking out a claim in the statement of case

Answer 20

• statement discloses no reasonable ground for making/defending the claim
• SoC is an abuse of the courts process
• failure to comply with a rule, practice direction, or order

Question 21

test for interim payment

Answer 21

• not unjust
• D admitted liability
• judgement has been obtained but the sum is yet to be assessed (usually split trial in complex cases)
• court is satisfied that the claimant will obtain a substantial sum following judgement

other factors
- dont need to show financial need
- reasonable proportion can be awarded
- contributory negligence should be considered

Question 22

test for interim injunction (mandatory/prohibitory)

Answer 22

• not sure

Question 23

test to discharge an interim injunction

Answer 23

(1) Applicant failed to prove all relevant information (material non-disclosure)
(2) Applicant failed to comply with the terms of the injunction
(3) The facts do not support the injunction
(4) The injunction is oppressive
(5) There has been a material change in circumstance since it was granted OR
(6) The claimant failed to prosecute the claim with due speed after obtaining the injunction

Question 24

Test for freezing injunction

Answer 24

(1) There is a justifiable cause of action
(2) The claimant has a good arguable case
(3) D has assets within the jurisdiction, AND
(4) There is a real risk that D may dispose of those assets before judgement can be enforced

(High court only

Question 25

Test for Search Order

Answer 25

Used to prevent D destroying evidence. Grounds - Strong prima facie case on the merits of the case - Strong reasons for believing the party might hide/destroy the evidence, AND - Clear evidence that the property/docs are in the parties possession

Question 26

In what circumstances is there not an automatic right to disclosure

Answer 26

- Privilege - Doc no longer in party's control - It would be disproportionate to allow inspection - Redacted for irrelevant and confidential information

Question 27

Interim application for specific disclosure request should contain:

Answer 27

Description of the documents sought and why Why it is reasonable and proportionate for them to be disclosed The grounds for believing they exist AND The safeguards provided e.g. protect trade secrets Plus evidence of these points

Question 28

Types of privilege for disclosure

Answer 28

Legal advice Litigation Common interest Without prejudice Public interest immunity

Question 29

Basis for expert evidence

Answer 29

Formal degree or experience Not within the experience of the judge Reasonably certain Demonstrate the basis of their opinion

Question 30

What do you call the judges in written correspondance?

Answer 30

Judge (district) Judge (circuit) Master (master) Judge (county court) Lord Justice (high)

Question 31

Grounds for appeal of judgement

Answer 31

- Decision is wrong in fact, law, or exercise of discretion AND/OR - Decision is unjust because of serious procedural or other irregularity

Question 32

Whats the difference between standard basis ad indemnity basis for costs?

Answer 32

Standard is proportionate costs only and any doubt is in the favour of the paying party. Indemnity is not proportionate, any doubt is in the favour of the non-paying party.

Question 33

Interim application for a security for costs order

Answer 33

- Claimant may be required to pay money into the court or provide a bond. - Only a defendant can make this request Available where - The Claimant is a resident outside the jurisdiction, - The Claimant is a company and there is reason to believe it would be unable to pay, - The Claimant has changed address/given incorrect address to try and avoid the litigation - The Claimant is suing on the benefit of someone else - The Claimant has moved assets outside of England & Wales