This webinar will cover Section 3: Commencing and Defending a Civil Litigation Action of the workbook
Hello. My name is Alice Hardin. Can I welcome you to this second webinar in our Siri's dealing with civil litigation? Hopefully by now you've seen Webinar one on our now familiar with. If you like the foundations, the building blocks for a while, civil litigation What we're gonna do in the course of this webinar is actually move on as how litigation begins and commence commences in court. Off course, we're now at the stage off, in essence, issuing proceedings. And of course, one that takes the view that there are alternative methods of dispute resolution have failed. We've tried mediation. We've tried arbitration with tried conciliation. None of that it's worked on our client is still at loggerheads with the other side and it may well now be that the only way to do with the matter is in fact, to litigate in the county court or the high court just by way of refresher. From that from the first webinar in in Siris off course, we need to be mindful of our time limits. Limitation periods are important and we must be sure that we are issuing the claim in time. Secondly, we also actually have toe think about how the claim is going to be issued on a low. Claims are issued using particular types of form. You don't simply write a letter to the court and say I want to sue Joe Blocks. There are particular films that need to be used for all types off. Litigation on the court forms themselves when we haven't. There's an example of a claim form, I think in your notes, but allow the relevant forms that you will need are downloadable from the governor UK website on are very easy to complete. They take before on the screen of complete hable pds Andi. They're very user friendly and easy to fill in. I'll be taking you in due course to some of those forms, the ones with which will probably come across the most. Then, of course, the other thing you need to think about is not you personally. But once that the matter has begun a court, there will be a file opened at court on the particular case that's known as the court file and will contain copies of correspondence and all the various forms that are being used. And of course, getting back to what we said earlier on in the other weapon off course, we need to be mindful off the value off the claim because that will obviously dictate where we're actually going. Teoh issue the court. The court itself is important because which court are we going to start the action in while I'll take you through each of the tracks again in due course. But if your claim is gonna be in the county court, let's say it's what's called a money claim. It's for debt. Then there is now a almost a little separate jurisdiction that goes alongside the county court on. That's the C C M C C, which is the county Court money claims center. It is based in the most wonderful city of Northampton on all money claims are now issued out off the Northampton County Court. So if you've got a money claim that is for less than £10,000 then come what may your claim is gonna be dealt with at Northampton. The other thing, of course, which we haven't touched on yet are the parties to the litigation Now. Obviously we have the claimant that is the person bringing the claim on the defendant against whom the claim is brought. But there are various different categories of person who can be claimants on defendants. Obviously, you have, by way of example, number one, your client, maybe a limited company. Or if you speak German, I think Gesellschaft between the shrink huffed, um, many years ago, I did some German law, which is why I remember these things on. Of course, a limited company is to use the latte inflate phrase a person in Remen rather than persona on. Therefore, a limited company has the status has the standing to bring a claim against somebody else. Obviously, your client, maybe an individual and an individual can obviously bring a claim against the company or another individual. But he gets slightly more complicated when you start to deal with things like partnerships. Many law firms still exist as partnerships where the heart murmurs and there may be 20 or 30 of them. In fact, run the organization on in those circumstances, and you'll see this in your packs. There are rules as to how you would go about suing a partnership. You would probably have all of the partners listed on then, underneath the the name of the firm, but you would need to have the partners collectively named in the litigation a sole trader like a barrister or perhaps a sole trader who runs a shop. The shop name may well be Barkley stores, but the actual proprietor of that is an individual. And in such cases it would be John Smith trading as Barkley stores or as the claimant, all the defendant. That's how you would deal with a sole trader. And, of course, if your client is a child or lacks capacity, then they would bid. The proceedings would be brought in the name of what's called a litigation friend. Usually in a child case that would I be the mother or the father or the Guardian. But the actual claim into a defendant would be the name of the child, and then it would say something like in brackets via or by his litigation friend and then the name off the mother. But in most instances, you won't have to worry too much about the identity of the party, because in the majority of cases you're either dealing with an individual or you're dealing with a limited company. Well, now, off the types of claim that we can bring. Well, as I say, Remember from from webinar number one. Always check that the type of claim you are bringing to see if it is governed by one of the pre action protocols and make sure that you have complied with the requirements of that pre action protocol. Because if you don't in your acting for the claimant, the defendant may well take the view as part of its defense. That there is no jurisdiction on the grounds of the claimant has not complied with the pre action protocol. But claims in civil litigation usually fall into two categories that we called specified amount claims on unspecified amount claims now specified amount. Claim speaks for itself. Let's say that under a contract the defendant was due to pay me that the sum of £5000 that is a concrete summit is encased within the contract. The defendant fails to pay me the sum of £5000. Therefore, I assume, for the sum of £5000 that is what I am seeking as a remedy in militarisation, the defendant to pay me that sum of money. That sum of £5000 is certain allowed to use the wording of the CPR. It is a specified amount, but a number of cases, mainly involving personal injury, will be called What, what we what we refer to as unspecified amount claims. For example, road traffic traffic injury damages. Because some of you may know that when assessing what we call general damages for pain, suffering and loss of immunity in a road traffic case, there is no fixed sum that arises from that. What the judge will do is look at the circumstances of the case. Look at how much the claimant has been affected by, in my example, the road traffic accident on. We'll refer to the leading practitioner text of Kempin Kemp on. We'll work out the amount of damages that are to be awarded to the claimant for the pain, suffering and loss of immunity arising from the injury that, as I say we call general damages and the assessment of those damages is not made by the judge until the conclusion off the case. So in other words, when the litigation is being conducted very much, what is being claimed is an unspecified amount because it's only once liability has been established that the judge will be able to actually make a ruling on the amount of damages or the amount of compensation to which the claimant is entitled. So specified amount claims. Where we've got a particular sum of money that's mainly owed under contract or whatever, it is unspecified. Usually where there is a P I element. How then do we go about starting the proceedings? Well, there are three types of claim that you'll come across probably the most often There's what's called a part seven claim apart. Eight Claim and apart. 20 claim a little bit more flesh on the bones off each of those. The part seven claim is the one that is used most often because Apart seven claim is used for money claims, whether a specified amount claim or an unspecified amount. Claim Onda and the claim form, which you can download. And we have an example. I think in your packs that claim form is a part seven claim form, and that is the form with which the claim it started. So part seven claims are the majority with which you will deal apart. Eight claim is slightly different to a part seven claim apart. Eight claim is way you would be. You would use the part eight procedure. Usually when you are seeking a ruling by judge on a particular issue, such as simply getting a judge to enforce it in front settlement or enforcing certain statutory rights on one usually only uses the Part eight procedure where there is no substantial dispute of fact between the two parties. So, for example, if it's a declaration in relation to a will, there's not gonna be a substantial dispute of the or fact in that particular case. It's very, very straightforward. One looks with subject matter of the will on the judge will rule and give the declaration on that particular point that would be better done via the party procedure. But obviously you know a road traffic accident where one driver is suing another. There is likely to be a substantial dispute of fact as to whom was actually at fault for the road traffic accident, and therefore, in those circumstances, the part seven claim is the claim that would be used. Finally, Part 20 now, Part 20 deals with counterclaims and third party claims, sometimes in the case, the defendant may well with Mission, which to make a counterclaim against the claimant. The classic example would be this. Let's say that the defendant, a builder, has set the claimant as a builder at the The client of the builder for whom a house has been built for a piece of building work has been done, has not paid a bill of £2000. The builder, as the claimant, then sues the defendant for non payment off that money. But it may well be that the person who hasn't paid the money has a counterclaim against our build a claimant. The reason that they're withholding the money is because the builder has done a bad job or a shoddy job on That is why payment hasn't been made on the claimant. Sorry of the defendant wishes to counterclaim against the builder for damages for the bad work that has been done in any loss free flowing from that. So that's a counterclaim where the defendant makes a claim countering that off the claimant. But there's also what we call 1/3 party claim. Now again, third party claims go hand in hand with counterclaims and are governed by part 20. Take a road traffic accident by way off example. Let's say we have the claimant driver who sues the defendant because the defendant has driven into the back of him on a road that the third party claim is where the defendant brings the part 20 claim against the driver behind him. Because it was in fact his fault because he hit the defendant who subsequently hit the claimant on in road traffic cases that could go on for some time. But there are lots off third party claims. When it wasn't my fault, the reason I hit him was because of this. The reason he heard was because of this and so on and so forth, where you have that line of liability going all the way back that is governed by the part 20 claim. So what? When we start the claim, what do we have to lodge at court? More? The first thing, of course, is the Part seven claim form to which I have already referred Andi in your packs, you have an example off the part seven claim form. It is, as you will see, a relatively straightforward a claim form. I will ask for various pieces of information. Andi, it can be easily completed and it is lodged with the court. You will see on the claim form that there is a a section for the particulary off the claim. Now this is terminology with which you will become very, very, very familiar because the particulates have claims set out the basis for making the claim on those particulars of claim in simple cases can be set out in the body of the claim form. But in more complex cases, it may be more appropriate to set out those particulars of claim in a separate document. Now, if you're on the ball and have actually drafted the particulars of claim in a separate document, it can be annexed to the claim form. There's no problem there. But of course, if you wish more time in order to get your particulars of claim in, what you can do is lodge to claim form on, then on the form, say particulars of claim to follow on bacon be served and lodged with the court separately to the claim form. But within 14 days off, lodging the claim form at the court, so particulars have played either in the body of the claim form, separate document or a separate document to follow within 14 days. When watching the claim firm and potentially the particulars of claim, you will also have to pay the court fee litigation. As I said, it can be expensive and almost everything you logic cord will have. Accompanying court fee on the amount of the fee that you pay is actually governed by the value of the claim. So the higher the value of the claim, the more expensive it is going to be toe actually issue that claim. I'm within your white book, your green brokers a table at some point that shows you the different court fees that are payable on Daz long as you pay that fee, the court will issue the claim if you don't pay the fee when you're lodging a claim form of court, the court will not issue the claim. Finally, on the claim form itself. Can I just draw your attention and you will remember this from the first webinar to the statement of truth? Allow claim forms have to be signed off by that statement of truth that the claimant or whoever it may be, certifies that the contents of that claim form uh, true. On you'll see another court documents that will look at later on that they are always accompanied by a statement of truth. Make sure that statement of truth is completed because it is not. Then the claim form is defective on. In all likelihood, it will not be issued by the court. I mentioned a moment ago the particulars of claim on that. That would be a concept with which you become very familiar. The particulars of claim themselves, as I say, set out the basis for the claim on There's no Particular Magic aceto how particulars of claim should be drafted. But can I just take a few moments toe offer you some wisdom on this? Firstly on, it will depend on how much money your firm has, where you're working. But a very useful text is Bullen, Leak and Jacob on practice and pleading on. This is a two volume work, a practitioner text that contains a number of precedence for different types of claim, where in fact you can steal the text of the president on inserted into your particulars of play. Also the Green Book in the White Book have separate sections giving you draft particulars of claim for different types of claim. So never think that you are on your own. When it comes to drafting particulars of claim, you should be able to find a precedent which hopefully you'll be able to use and obviously adapt for your particular purpose is off the case on most types of claiming a contract taught, there is a logical structure to the way in which you would set out a set of particulars of play. Let's take a contractual dispute at first at the logical order of presenting those particulars of claim is, firstly to identify the parties, the claimant and the defendant who were parties to the agreement on the second thing is the existence or the conclusion of the contract so that they're establishing that there is, or making the allegation that there is a binding contract. You would then set out the relevant express terms of that agreement and irrelevant implied terms of that agreement. Then talk about the performance of the contract, then the breach that is alleged, the causative effect of the breach on the claimant on then set out any loss that the claimant has suffered. So that's if you like the standard running order for a contract play. Parties agreement, express terms, implied terms, performance breach, causation, lots in a negligence case move. Moving into the realms of tort law. It's very, very similar. You would follow a similar, although slightly different pattern. If you were pleading a case in negligence again that the identification of the parties, the claimant on the defendant, the existence of the duty of care, what was the duty of care that was owned by the defendant to the claimant? One is the standard of that care. Is it? The reasonably competent motorist isn't the reasonably competent factory owner and so on and so forth on then the breach of that duty of care again. The fact that that breach has caused lost to the claimant and then set out what that losses So in a negligence claim your flowing structure for the particulars of claim that would be assed follows parties, duty of care, standard of care, breach, causation, loss on that gives you the running order that you would need. Of course, In some cases it may be very complicated. In some cases, it will be very simple. But if I could give you one piece of advice, it would be this. Judges like particulars of claim to be as brief as possible on there is no substitute for acquiring the skill off brevity. The briefer You can be the sharp you could be the punchy you can be the better. Remember folks that the particulars of claim are setting out just that. The particulars off the claim, the evidence witness statements are documentary evidence that we talked about in webinar number one. They are, if you like the supporting bits for the particulars of claim and therefore, if you can try and avoid, avoid setting out in massive amounts of detail, evidence in particulars of claim, you simply set out the allegations said of the defendant is able to understand the claim that is being made on the various allegations that the defendant is going to have to meet at trial, so keep them as brief Ondas, punchy as you possibly can. So what happens next? Claim form particulars of claim either an X or following in 14 days. We've paid the court feed The court fee has been paid on. Our statement of truth has been signed. What happens next? Well, as I say, things are lodged in court on the defendant in the claim will then be served with what is called the response pack. Now their response pack contains a number of different documents. It, of course, contains the claim form because the defendant needs to be able to appreciate what the claim is about. It will also contain the particulars of claim, whether they've been annexed or formed part of the claim form or, if they're to be served in a later date, will be served in a later date. So the claim film in the particulars of claim go to the defendant. On the other contents of the response pack are what's called an acknowledgement of service form. More on that in a moment. Ah, form of admission on a form off defence and counterclaim on in terms of time periods. Once the once the response pack and the claim form has been served upon the defendant, the defendant has 14 days in which to respond in some way on if the defendant does not respond within 14 days, the claimant is entitled to enter what's called judgment in default. So in other words, if you are acting for a defendant on, a defendant comes to you seeking help saying, I've been served with this. Check the date upon which the defendant was served with the claim form because you only have 14 days to take one of the steps or deal with one of the various steps that I'm gonna come onto briefly in terms of the service of documents. I should have said this perhaps earlier. The service of documents is usually affected by the court. In some cases, it can be affected by the claimant. All the claimants, a lister that can be serving the papers in person or by first class, post or by document. Exchange their various ways and you'll see in your packs the various means by which at service could be affected. But if things fail and you can obtain what's called an order for substituted service, this is if you can't find your particular defendant, they disappeared. Then you can apply to the court for an order for substituted service. But those occasions when you'll need that, I'll fairly ram. So the defendants got the response back in the claim for what cannot defend do well, there are a number of things the defendant do. Firstly, hell, she or it. If it's company can pay the claim. Uh, obviously, if there is a claim for £5000 on the defendant, books his hands up yet absolutely, you can just pay the money on that is an end of the matter. The claim goes no further. It halts at that first stage. The defendant can then admit to the claim on We use the form of admission for that to which I will return. The defendant could also admit part of the claim because very often there may be certain aspects of the claim that the defendant admits but certain aspects of the claim that defendant does not admit on. Therefore, you could have a part Admission on the defendant can also file the acknowledgement of service with court that will allow them then to file a defense in due course if they wish or straightaway file, deny the claim and filing defense. You can admit the claim and file a counterclaim off course. As I mentioned a moment to go in terms of judgment in default a defendant somewhat unwisely, that could do nothing. What off? Therefore paying the claim on admitting the claim or admitting the claim in part, a bit more flesh on those bones. If, as I say the defendant puts his or her hands up and pays the claim within 14 days, the proceedings are at an end on no further action is taken. If, however, the defendant admits the claim but needs time to pay, there is provision within the response, packing on the form of a mission to say yes, I've met the claim, but I want to pay in installments. I'm gonna pay £1000 a month over the course of the next five months. If that is accepted by the claimant. Once the claimant gets to hear of the admission and the often pay in settlements if the claim and accepts that again the matter is at an end on the defendant will be held to make those payments. Over the course of the coming months, the defendant, of course, may admit the claim, but then make an offer to pay in instalments which is not acceptable to the claimant. And this sometimes, for example, let's take a debt of, say, £5000 on the defendant office to pay at the rate of £1 per week, which would take is you would appreciate some time toe actually discharge on the actual value off the claim. In those circumstances, the claimant would be totally in liberty and quite right to reject such on offer. Therefore, what happens practically and you'll see this in the note is obviously, if the defendant makes an offer to pay in installments that isn't accepted by the claimant, the court will then hold some form of hearing. If it's in the county court will be with the district judge of it's in the High Court. It will be with the master to determine the way forward on what, in essence, installments should be made. There's that, obviously, the opportunity for the defendant to make a part of mission. There may be certain aspects of the claim that the defendant, except but certain parts of the claim of defenders, not accept again if the defendant is gonna deny certain aspects but admit certain aspects that would obviously move matters on further into the litigation process. If your defendant wishes to deny the claim or seek to put in a counterclaim. Then he or she or it will need to complete the defense at section off the response pack on file that defense with the court within 14 days. Now, if you remember when we were talking about the particulars of claim, I said that they could be forming part of the claim form. Or in fact, you had a further 14 days to launch the particulars of claim. If you wish a bit more time to put in your defense, where the council has to draft it or it's gonna be quite a lengthy document. What you complete is the acknowledgement of service form on what this does. You. Then lunch. The acknowledgement of service form with the court on that gives you if you're acting for a defendant 28 days from the date of service of the claim form to put in a defense on again, council may have to draft it or solicitor may draft it, or even you may be drafted. Who knows, you would make sure that you got that defense in within 28 days. Obviously, if there is a counterclaim aspect to it, again that would form part of the defence and counterclaim on this provision in the form to complete that if you wish to make a counterclaim against the claimant. Indeed, Azzawi referred Teoh. I think in the previous Webinar you may be making a part 20 claim. That is where obviously, Part 20 governs counterclaims. But you may be making 1/3 party claim, say, in a road traffic accident where we're suing the driver behind us who's suing the driver behind him or her etcetera, etcetera on. That claim will be made a spark off the defense, but one of the situation where the defendant does nothing. I believe you, me, this This happens from time to time that a defendant will receive notice of claim on will not do anything at all. Now, of course, all the things I have referred to, the knowledge of service, the defense, these have to be done within 14 days. And if the defendant does nothing, as I said earlier, the claiming can enter judgment in default. Now, what this means is that because the defendant has not practically dealt with any of the steps that he or she needed to deal with in order to respond to the claim the claimant is entitled to judgment. Well, invariably happens is that if judgment in default is entered, the defendant for want of a better phrase, is up the creek on. No doubt the district judge in the county court or the master in the high court will then order for there to be a hearing simply to calculate the amount off damages or money to which the claimant is entitled in a specified money case. It's more straightforward because judgment is simply entered in favor of the claim and for the sum of £5000. But if, for example, it's a road traffic case with a personal injury element where the judge is gonna have to assess the general damages for pain, suffering and loss of immunity, then quite clearly there needs to be a hearing to defend that. But liability is not an issue the claimant has got judgment on. The defendant can come along to that hearing to argue about compensation. They cannot argue about issues of liability, but one thing you will come across a lot is where the defendant has done nothing on judgment in default, has been entered by the claimant. The defendant does have the opportunity to make an application to set aside that judgment in default. Ah, no. I've done many, many applications over the years to set aside the judgment in default. This is, if you like, where the defendant wakes up. You know, in other words, they've ignored the claim form on the particulars of claim, and they just go home. I'm not gonna deal with that. And then suddenly, through the post. Oh, or served upon them personally, depending on how it's done. There is a document that says there shall be judgment from the claimant in the sum of £10,000 on at this stage, the defendant finally sits up and takes notice and thinks right, What can I do about this? Um, I totally up the creek. And do I have to pay £10,000? Fortunately at the answer is no, not necessarily because the application could be made to set aside the default judgment. The most common occurrence when when we would make this application is if, for example, through no fault of the defendant, he or she we're out. We're out of the country. When the claim form was served by post defendants in cases are allowed to take holidays. I didn't maybe be. Then they got back from being abroad and think, Wow, his judgment. What the hell am I going to do with this? On the test for setting aside judgment in default is essentially this that the defendant must have a really prospect of successfully defending the claim, not fanciful or not a mere chance. There must be a riel prospect of successfully defending the claim. And obviously, as part of the application to the court, you will need to try and show the court with evidence as to why there is a real prospect of successfully defending the clay. The application itself is made to the court using for men to 44 That's the standard form for making applications to the court again, easily downloadable from gulf dot UK. But the application must be made promptly on this is something that the judge will take into account when considering the application to set aside the default judgment. If the defendant has delayed in making the application, let's say they get back from abroad and they see the claim form and they don't issue the application to set aside the default judgment for, let's say, two weeks, that is not acting promptly. What you want is a defendant who gets back from abroad instantly, picks up the phone to solicitors on the application is lodged that afternoon that is acting promptly. The application needs to be supported by a witness statement. Within that witness statement, you would obviously set out the defendant's evidence off why the defendant considers that they're a really there is a real prospect of successfully defending the claim on also setting out circumstances that, if you like, show that the defendant had acted probably when he or she or it became aware off the judgment in default. When the judge considers at the application to set aside judgment in default, hell, she can do one of two things. They can obviously refused the application, in which case the judgment stands and the defendant will be liable to pay the judgment some a while the application can be granted, and if the application is granted, the default judgment is then set aside on we revert to the matter, being live again with the defendant, then probably getting a direction to file and serve a defense. Within a period of time, a militarization will continue. The principles governing the setting aside of default judgment would take some time to explain. There are detailed legal matters. There's a raft of case law on the principles that a judge should apply when considering whether or not to set aside the judgment in default. Can I commend to you the reading of Part 13 of the CPR on the practice direction to Part 13 which will tell you everything that you need to know you'll find those in your white book or your green book? It's not. I know I've said that the test is real prospect of successfully defending the claim, but for the detail on that, you could make reference to your white boo hoo your green book, which will tell you everything you need to know. Can I know to another procedural matter with which you're probably gonna have to deal with quite a bit. Obviously, we've looked at the concept of judgment in default. This occurs where the defendant has done nothing on. Therefore, the claimant is entitled to judgment in a particular case. But assume for the moment, slightly different facts. Let's say that the defendant has put in a defence to the claim, or, indeed, that the claim itself is particularly spurious or lacks merit, etcetera. Does the claimant or defendant have to go through the entire trial process in order to resolve the dispute? Well, the answer is no. On this is where we bring into the equation at the concept off summary judgment. Now, summary judgment must not be confused with judgment in default. Summary judgment can happen or you can apply for it once the claim form has been lodged on at some form of defense has been putting on. In essence, what it is is a speedy resolution to those cases where either the claim has little merit or the defense that the defendant has put in has a little merit on this. A zai say the process is known as obtaining summary judgment. The advantage, of course, of summary judgment is that it avoids the need for a full trial. In other words, most summary judgment applications can be dealt with in a relatively short space of time. Again, as we saw with setting aside judgment in default, there are for summary judgment. Some complex legal considerations on again. I refer you in your white book, your green book to Part 24 on the accompanying commentary on the practice direction. But in essence, the test for summary judgment is this on. This is whether you're a claimant or defendant. It doesn't matter. But the claimant concise a to the court that there is no rial prospect off the defendant being successful, a trial in their defense on there is no other compelling reason why the matter cannot be dealt with on a summary basis on equally if a defendant wishes to make an application for summary judgment in respect of a claim again, the argument is that there is no real prospect off the claim succeeding on. There is no other compelling reason why the matter cannot be dealt with on a summary basis. The procedure that you would adopt to apply for summary judgment again is the same as that in judgment. In default, you would use the end to 44 application notice again. That application notice, when applying for summary judgment, needs to be supported by evidence, usually in the form of a witness statement. So the witness statement of your client will set out the reasons why, as a matter of fact, or sometimes as a matter of law, very often in summary judgment applications, you get a witness statement from a solicitor setting out that the actual legal basis of the claim has little merit or the defense has little merit. So the application notice would be accompanied by witness. Evidence that is then lodged at the court on a date will be fixed for the hearing. If you're in the county court, the hearings likely to before district judge. If you're in the high court, it's likely to be before a master on the parties to the application to summary judgment. The claimant on the defendant or whomsoever it maybe will be given at least 14 days. Notice off the date of the hearing. Obviously, if a claimant makes an application for summary judgment against the defendant, the claimant will have put in the witness statement and some evidence in support of that application. The defendant or, if you like the respondent to the application, can file and serve its evidence again. Witness statements, documents, whatever it may be at not less than seven days before the date of the hearing that has been fixed on again. If the claimant wishes to put in any further evidence responding to the defendant's evidence than that, evidence must be lodged not less than three days before the hearing. This, of course, means that everything again everybody gets to see what everybody is relying upon. The actual hearing itself is an application. There is no live evidence at a summary judgment application. It's purely decided upon the papers. So it's not as though the judge is gonna turn it into a little mini trial where the evidence is going to be tested and there's gonna be cross examination. It simply doesn't work like that. It's purely done. On the papers. The judge will read the application for summary judgment. The claimants evidence in support of that application on the defendant. If it's a claimant against defendant, the defendant's evidence in support of why the case is not suitable for summary judgment, most in my experience, summary judgment applications fail where there is a serious dispute of fact between the parties. Those are matters that a judge is never gonna resolve at the summary stage, and therefore those are matters that are best dealt with a trial. So when you're actually considering whether or not to apply for summary judgment, if there is a substantial dispute of fact between the parties within the body of your case, it's highly likely that you would be wasting your time in making the application. But if the application is made, what can the judge do? Well, obviously, if the judge takes the view that there is a real prospect of successfully defending or there is a real prospect of succeeding at trial that obviously the application for summary judgment will be dismissed on the judge may then go on to give further orders and directions for the conduct of the litigation. The judge may give judgment for the claimant. If there is a spurious defense, the judge may say no. There is no real prospect off the defendants successfully defending this case and therefore enter judgment for the claimant. Equally, if it's the defendant that has applied for summary judgment on the claim, saying that the claim is spurious on has no a real prospect of success, then obviously the judge can strike out the claim, and that means that the claim. Although properly brought by way of the claim form, particulars of claim will be Internet. It will be dead. It will be struck out. Indeed, the judge can make a conditional offense. Conditional holds. For example, a judge might say, If there's a claim that involves, let's say, the delivery up of a vehicle, the judge might well say, Well, I'm gonna make a conditional order that if the defendant does such and such, or if the claimant does such and such, then our grant summary judgment and then we can move on to another hearing Teoh, look at where there is some dispute in terms of the financial remedy again, Sometimes in a personal injury case, the application for summary judgment might succeed on. Therefore, they would need to be a further hearing to determine the unspecified amount of money, the compensation or damages to which the claimant would be entitled s. So I think that the best words of wisdom I can give you a tread carefully with summary judgment applications. It goes hand in hand, I suppose, with the way you conduct the litigation on behalf of your client, try to avoid getting into litigation by correspondence on right to the other side of your claim has got no merit, blah, blah, blah. I get you nowhere if you really are convinced, or your client is convinced that there is no real prospect of success. Put your money where your mouth is on lodge the application for summary judgment and see if a judge granted or no, but use it sparingly. It's not going to be something that is appropriate for every case. Well, there we are. That brings us to the end off the second in the Siri's off Webinars. Now everything is sort of up and running with lodged a claim form. We've got our defense. If there was a judgment in default, it's been set aside. We've dealt with summary judgment the next webinar, which I heard you're gonna watch cause I hope you're going to stay with me. I don't want to lose you now, but the next webinar we're gonna move on to the actual things that you need to be thinking about when preparing for the trial. A trial is now going to be inevitable based on the stage of the litigation process that we've now reached. I thank you for your attention on. I look forward to seeing you again in the third Weber now, which hopefully you'll watch very soon and if not in your own time, when you're ready to watch it.
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