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ADVOCACY TESTS DISPUTE RESOLUTION - Coggle Diagram
ADVOCACY TESTS DISPUTE RESOLUTION
INTERIM PAYMENT
DEFAULT JUDGMENT
Relevant rules- CPR 10 and 15 set out the time period for filing acknowledgment and serving defence
Procedure is CPR 12 - By filing a request or CPR 23 application
Conditions (a) Failed to file an acknowledgment of service or defence to the claim or counterclaim (or part) - Judgment in default of acknowledgment: if at the date of acknowledgment or a defence. Judgment in default of defence: if D filed acknowledgment but, at the date of judgment a defence was not filed. (b) relevant time for doing so has expired
SET ASIDE DEFAULT JUDGMENT
CPR 13 (Procedure: CPR 23 application)
13.2 Grounds where the court MUST set aside (No discretion)
(1) D filed before the default judgment; Clements v Berrymans: No default judgment where defence filed before judgment, albeit late
(2) D applied for summary judgment or C's statement of case to be struck out before default judgment
(3) D filed or served an admission of liability to pay all the money claimed together with a request for time to pay; or
(4) The whole claim was satisfied before judgment
Court discretion under 13.3 must have regard to: (1) Whether the application was made promptly (2) The overriding objective (CPR 1.1) (3) Whether prejudice may be cause to C
Court discretion under 13.3 must have regard to: (1) Whether the application was made promptly (2) The overriding objective (CPR 1.1) (3) Whether prejudice may be caused to C
SUMMARY JUDGMENT
CPR 24 (Procedure: CPR 23 application)
Conditions: Only if the court is satisfied that: (1) The respondent has no real prospect of success -
Three Rivers Council v Bank of England: not one of probability; it is the absence of reality and not enough merits. The simpler the case, the easier it is to determine it on a summary basis
Swain v Hillman: Prospect must be realistic as opposed to fanciful but does not have to be substantial. It must not be a 'mini-trial'
Credit Suisse v Ramot Plana: Prospects must be more than fanciful or merely arguable
(2) No other compelling reason to wait until trial
ICI Chemicals v TTE Training- The possibility that further evidence may turn up is not enough
Miles v Bull- If there is a case for investigation, it won't be for a summary decision. Unsuitable for cases if the facts are subject to serious dispute
Optaglio v Tethal- Contemporary mateiral must be sufficient to say that the contrary assertion has no real prospect of success. This is not a question of weight or of weighting competing materials.
Hewes v West Hertfordshire Hospitals: Where expert evidence is central to issues of liability, summary judgment can rarely be contemplated before the exchange of experts' reports.
INTERIM INJUNCTION
STRIKE OUT STATEMENT OF CASE
RELEIF FROM SANCTIONS
PERMISSION FOR LATE EVIDENCE
Procedure: CPR 23 application --> CPR 3.1 (2)(a) The court has the power to extend or shorten the time for compliance with any rule, direction or order (even is an application for extension is made after the time for compliance has expired)
CPR 32.10- If a witness statement or summary is not served within time, the witness may not be called to give oral evidence unless the court gives permission
CPR 35.13- A party who fails to disclosure am expert's report may not use it at the trial or call the expert to give oral evidence unless the court gives permission.
CPR 31.21: A party may not rely on any document which it fails to disclose to permit inspection unless the court gives permission
THERE MUST BE COMPELLING GROUNDS AS TO PERTINENCE AND INDEED THE NECESSITY OF THAT EVIDENCE, AND EXCEPTIONAL CIRCUMSTANCES WHICH JUSTIFY THE FAILURE TO APPRECIATE THE NEED FOR IT EARLIER
SUBMISSIONS FOR TRACK ALLOCATION
CPR 26.13
Matters relevant to allocation to a track:
(1) Financial value (if any)- It is for the court to assess the value. In doing so, it will disregard any amount not in dispute, claim for interest costs and contributory negligence. If the case involves more than one money claim (e.g. counterclaim) the court will generally regard the largest of them as determining the value (it will not generally aggregate the claims)
(2) Nature of the remedy sought
(3) Likely complexity (of the facts, law or evidence)
(4) Number of parties or likely parties
(5) Value of counterclaim or other additional claim and the complexity of any matters relating to it
(6) Amount of oral evidence which may be required
(9) Circumstances of the parties
SECURITY FOR COSTS
SPECIFIC DISCLOSURE
NON PARTY DISCLOSURE
PERMISSION TO APPEAL
CHALLENGE ADMISSIBILITY OF EVIDENCE
Example grounds
(1) Evidence is not relevant (2) Should be excluded under CPR 32.1 to deal with the case justly and at proportionate costs (overriding objective CPR 1.1) (3) Credibility and Reliability (e.g. biased, contradicting, suffering from a physical or mental infirmity or lack of understanding) (4) Documents are priviledged (5) Opinion evidence provided by a witness of facts (6) Expert lack experience, biased contradicting, not qualified (7) One of the exclusionary rules applies
FREEZING INJUNCTION
STRIKING OUT STATEMENT OF CASE (OR PART)