Legal Tests

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TEST: Application to set aside a default judgment
The defendant acted promptly; they have a real prospect of successfully defending the claim; and there is some other good reason why the judgment should be set aside
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When MUST the court set aside a default judgment?
(1) The judgment was entered before expiry of the time to respond;
(2) The claim has already been paid or settled;
(3) The judgement was entered whilst the defendant's application to strike out or obtain summary judgment in respect of the claim was pendin
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What should be contained within a contract claim Statement of Case?
The parties to the agreement; the nature of the agreement; terms that may have been breached; facts showing breach and losses; a prayer for relief (that is, the remedy sought); and a statement of truth
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What should be contained within a road accident claim (or other PI) Statement of Case?
A brief description of the collision, allegations of negligence, details of any relevant conviction, details of injuries suffered, a schedule of past and future losses, a prayer for relief, and a statement of truth
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What should be contained within an employer liability tort claim Statement of Case?
Facts establishing an employer-employee relationship, a description of the circumstances of the injury, allegations of breach, details of the injury suffered, a schedule of past and future losses, a prayer for relief, and a statement of truth.
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Grounds for objecting to a Request for Further Information
The request if unnecessary, irrelevant or improper
The responding party is unable to provide information/clarification
The party requesting the information gave an insufficient time to reply
The expense of complying with the request would be disproportion
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When should an interim application be made?
As soon as it is apparent that it is necessary or desirable
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How much notice should be given when making an interim application?
At least 3 clear days (5 if by phone)

Notice not required if there is a good reason (but if so, the party against whom the order is issued has 7 days after the order is served to make an application to set it aside).
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TEST: Application for Summary Judgement
Applicant must show the other party has no real prospect of success and there is no other compelling reason why the case should proceed to trial
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TEST: Application to Strike Out a claim
(1) The statement of case discloses no reasonable ground for making or defending the claim;
(2) the statement of case is an abuse of the court's processes; or
(3) there has been a failure to comply with a rule, practice direction or order
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Grounds for order for interim payment
NOTE: Interim Payment is always discretionary
(1) The defendant has admitted liability
(2) The claimant has obtained judgment but the sum to be paid is not yet assessed
(3) The court is satisfied that if the action proceeded to trial, the claimant would o
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An application for interim payment should include...
The sum sought, the matters for which it is sought, an estimate of the expected judgment, and (in a PI claim) a schedule of loss detailing both past and future losses
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How are interim injunctions enforceable?
Through contempt proceedings and usually include a penal notice so that contempt may be imposed without first seeking an unless order
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Grounds for the enjoined party to seek to discharge an injunction
(1) The applicant failed to provide all relevant information (material non-disclosure)
(2) The 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 ma
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What must an applicant prove when seeking a freezing injunction? (High Court only)
(1) There is a justifiable cause of action;
(2) The claimant has a good, arguable case;
(3) The defendant has assets within the jurisdiction; and
(4) There is a real risk that the defendant may dispose of or dissipate those assets before judgment can be
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Grounds for a Search Order (High Court only)
(1) A strong prima facie case on the merits of the case;
(2) The reasons for claiming the enjoined party might hide or destroy the evidence; and
(3) Clear evidence the property or documents are in the enjoined party's possession
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A party may make an interim application for specific disclosure if they believe that the party did not make adequate disclosure.
But before this, they should make a written request for the information first. What should this include?
A description of the documents sought and why they are relevant;
Why it is reasonable and proportionate for the documents to be disclosed;
The grounds for believing they exist; and
The safeguards that can be provided (eg. to protect trade secrets)
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Expert evidence is usually given by written report to the judge. Oral evidence can be given upon showing...
(1) Expert oral evidence is likely to have an impact on the outcome;
(2) It will assist the judge;
(3) There is a risk of injustice if the expert evidence is not tested; and
(4) The costs of the experts attending are not disproportionate
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Possible grounds for appeal
(1) The decision is wrong in fact, law, or the exercise of the court's discretion; and/or
(2) The decision is unjust because of serious procedural or other irregularity in the proceedings
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When is a Security for Costs order available (if D is concerned that C will not be able to pay D's costs if D wins)?
(1) The claimant is resident outside the jurisdiction;
(2) The claimant is a company or other body and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so;
(3) The claimant has changed address since the claim
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In a PI claim, the claimant cannot be ordered to pay the defendant's costs if their claim fails unless...
(1) The claim was fundamentally dishonest;
(2) The claimant failed to beat a defendant's Part 36 offer; or
(3) The claim was struck out for disclosing no cause of action or abuse
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A Part 36 offer can only be accepted in...
Writing.

(And if during the trial, with the permission of the judge)
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Cost consequences if a Part 36 offer is ACCEPTED (within the relevant period)
Defendant pays claimant's costs up to the point of acceptance.

If parties cannot agree costs, they will be assessed on a standard basis.
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Cost consequences if a Part 36 offer is ACCEPTED (after the relevant period)
If D accepts C's Part 36 offer: court decides liability for costs if the parties cannot agree.

If C accepts D's Part 36 offer: D's liability to pay costs only runs up to the end of the relevant period.
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Cost consequences if the Defendant's Part 36 offer is REJECTED by the Claimant
C rejects D's offer:
- C secures greater award = no effect on cost
- C secures worse award = D pays C's costs on standard basis up to expiry of relevant period, then C pays D's costs afterwards on standard basis
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Cost consequences if the Claimant's Part 36 offer is REJECTED by the Defendant
D rejects C's offer:
- C secures worse award = no effect on costs
- C secures greater award = D likely to pay interest on the entirety of the claim at an enhanced rate for the period after the relevant period ended. Costs for this period also assessed on
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Other cards in this set

Card 2

Front

When MUST the court set aside a default judgment?

Back

(1) The judgment was entered before expiry of the time to respond;
(2) The claim has already been paid or settled;
(3) The judgement was entered whilst the defendant's application to strike out or obtain summary judgment in respect of the claim was pendin

Card 3

Front

What should be contained within a contract claim Statement of Case?

Back

Preview of the front of card 3

Card 4

Front

What should be contained within a road accident claim (or other PI) Statement of Case?

Back

Preview of the front of card 4

Card 5

Front

What should be contained within an employer liability tort claim Statement of Case?

Back

Preview of the front of card 5
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