1
Q
Interim applications
A
applications made anytime before the dispute goes to trial
2
Q
Rather than bring an interim application, parties should always consider first…?
A
resolving matters between themselves so as to comply with the overriding objective and to avoid the imposition of costs penalties.
3
Q
After failing to reach a resolution between parties, an interim application should be brought
A
as soon as it appears necessary or desirable
4
Q
parties to an interim application
A
applicant/respondent
5
Q
To which court should interim applications be made?
A
to the court where the claim started or (if relevant) to where it has been transferred. If the claim has already been listed for trial, the application must be made to the court where the trial is to take place.
6
Q
Which type of judge usually hears an interim application?
A
- A master in the Royal Courts of Justice; or
- a district judge in either the County Court or a High Court District Registry
7
Q
Contents of an interim application notice (N244)
A
- what order is being sought;
- time estimate;
- details of any vulnerable parties and/or witnesses;
- verified by a statement of truth
8
Q
Although the solicitor will make submissions at the interim app hearing, the judge will decide the issue primarily on the basis of
A
the written evidence
9
Q
What should be attached to Form N244?
A
a draft of the order sought to assist the judge
10
Q
Main advantage of using a consent order rather than requesting an interim hearing
A
costs-saving for all parties
11
Q
With all interim applications, what should D do before applying to court?
A
write to the claimant first and ask for the application to be granted voluntarily eg security for costs
12
Q
How is an interim application made?
A
by filing an application notice at court with a witness statement and a draft order and paying a fee
13
Q
Parties to interim applications
A
applicant/respondent
14
Q
Service required for summary judgment
A
at least 14 days before the hearing
15
Q
Specific deadlines for summary judgments and interim payments (14, 7, 3)
A
(1) service at least 14 days before hearing
(2) respondent serves evidence on applicant & files at court at least 7 days before the hearing
(3) applicant serves evidence at least 3 days before hearing
16
Q
General timeline for interim applications
A
Issue → Service → Further evidence → Hearing
17
Q
Purpose of summary judgment
A
to enable the court to dispose of claims or issues without the need for a full trial
18
Q
What is the earliest point that the claimant could apply for summary judgment without the court’s permission?
A
C can apply for summary judgment after D has filed an acknowledgment of service or a defence
19
Q
What will the courts consider for summary judgment that they do not consider when assessing default judgment?
A
the merits of the case
20
Q
Interim payment
A
a payment on account of damages, debt or other sum (except costs) which a defendant may be liable to pay to a claimant
21
Q
Before applying to court for an interim payment, what should C do?
A
try to negotiate with D or D’s insurance company to obtain a voluntary interim payment
22
Q
The evidence provided in the application for an interim payment must contain
A
(a) sum requested;
(b) what the sum will be used for
(c) likely value of final judgment
(d) one of the conditions is satisfied
(e) whether D can pay;
(f) details of past and future losses for personal injury
(g) details of person on whose behalf the claim is made (if Fatal Accidents Act claim)
23
Q
Conditions to be satisfied for an interim payment to be made
A
one or more of the following must be satisfied:
(a) D admits liability to pay damages or some other sum of money to the claimant; or
(b) C obtains a judgment against D for damages to be assessed or for a sum of money to be awarded; or
(c) the court is satisfied that, if the case went to trial, Cwould obtain judgment for a substantial amount of money (other than costs) against D from whom they are seeking the interim payment.
24
Q
When is an interim payment often sought?
A
if there is likely to be a delay in the assessment of damages
25
Having established their entitlement to an interim payment, the court has discretion in relation to two questions:
(a) Should an order for an interim payment be made?
(b) If yes, what should the amount be?
26
Limits on the value of an interim payment that can be awarded
the court must not order a sum of more
than a reasonable proportion of the likely amount of the final judgment (usually a max of 75% of final judgment);
the court must also consider contributory negligence and any counterclaim.
27
When would the courts be less likely to exercise their discretion to award an interim payment?
If the issues are complicated or difficult questions of law arise
28
Will the trial judge be aware of any interim payments?
No, the trial judge will not be told about any interim payment order or voluntary payment until after they have determined all issues of liability and quantum, unless the defendant consents.
29
interim injunction
an order of the court requiring a party to do or to refrain from doing a given act
30
When should an interim application be made?
the party should apply as soon as it becomes apparent that it is necessary or desirable to make an application
31
Deadline for service of an application for an interim payment
at least 14 days before the hearing
32
Procedure for initiating an interim application
the applicant files an application notice (Form N244) at court and pays court fee
33
General rule for timing of service of an interim application
ASAP after the application is filed and not less than 3 clear days before the application is to be heard
34
Deadline for serving an interim application
not less than 3 clear days before the application is to be heard
35
What must be served on the other party after the application has been issued by the court?
The application notice, note from the court indicating the date and time of the hearing, evidence and draft order
36
When should a statement of costs in relation to the application be filed and exchanged?
not less than 24 hours before the hearing
37
When are the courts most likely to order a telephone hearing?
if the hearing is expected to last less than 1 hour
38
Which documents are taken to court for a hearing date to be set?
Application notice (Form N244)
Supporting evidence
Draft order
Fee
39
When might there not be a hearing for an interim application?
- The parties have agreed the terms of the order;
- The parties agree there should be no hearing; or
- The court does not consider a hearing appropriate
40
the claimant's duty of full and frank disclosure in without notice hearings
- in the interests of fairness, the applicant must disclose
all relevant facts, including any matters favourable to their opponent;
- must draw the court’s attention to evidence and arguments they reasonably anticipate the respondent would wish to make
41
interim applications with a time estimate of 1 hour or less will be conducted by
telephone (although usually in-person if made without notice)
42
Procedural safeguards for without notice hearings
The application must explain why no notice is given;
The applicant must serve the respondent ASAP after the hearing, whether or not the court has granted the relief sought.
43
For without notice hearings, the documents the applicant must serve on the respondent are
- The application notice
- The evidence in support
- The court order
44
Any application to set aside must be made within
7 days of the order being served on the other party
45
Aim of summary judgment
Enables the court to dispose of claims without full trial, saves costs and furthers the overriding objective
46
Who can apply for summary judgment?
Either party can apply if they view the other party’s position to be sufficiently weak
47
Grounds for summary judgment
(1) The claimant has no real prospect of succeeding on the claim or issue; OR
The defendant has no real prospect of successfully defending the claim or issue; AND
(2) There are no other compelling reasons why the case or issue should be disposed of at trial
48
Test for summary judgment: Limb 1
The claimant has no real prospect of succeeding on the claim or issue; or
The defendant has no real prospect of successfully defending the claim or issue
49
Test for summary judgment: Limb 2
There are no other compelling reasons why the case or issue should be disposed of at trial
50
An application for summary judgment is made under which CPR?
Part 24
51
In the 'no real prospect' test, what does 'real' mean?
more than merely arguable
52
Ideally, the claimant or defendant should apply for summary judgment either
before or at the same time as filing the Directions Questionnaires to avoid incurring unnecessary costs
53
A summary judgment application creates ?
a pause in the proceedings
54
Deadline by which respondent must file and serve evidence before a summary judgment hearing...
at least 7 days before
55
Potential outcomes at the summary judgment hearing (4)
- Dismissal of application
- Obtain Summary Judgment
- Dismissal of claim
- Conditional order
56
If D secures summary judgment so the entire claim is struck out, what costs could C be ordered to pay?
the court will normally order that C pays D's costs of the whole claim – either fixed costs or summarily assessed depending on the claim track
57
During which time can the claimant NOT apply for an interim payment?
the claimant cannot apply for an interim payment before end of the period for D to file an acknowledgment of service
58
an interim payment made by a defendant in the course of the proceedings will not be disclosed to the trial judge until
all questions of liability and quantum have been decided
59
Security for costs
an application made by a defendant (the applicant) if concerned that the claimant (the respondent) will not be willing and/or able to pay the defendant’s costs if their defence is successful
60
How are security of costs determined?
security for costs relates solely to the costs of the claim, not the level of damages which may be awarded.
61
Who can apply for security for costs?
- a defendant
- a claimant against a defendant in respect of a counterclaim
- a third party against a defendant in respect of an additional claim
62
Grounds for security of costs (2)
1. Having regard to all the circumstances of the case, it is JUST to make an order
2. One or more of the prescribed conditions in the rules are satisfied
63
Prescribed conditions for security for costs
- The claimant is resident out of the jurisdiction (but is not resident in a State bound by the 2005 Hague Convention)
- Claimant is an impecunious company
- Claimant has taken steps to make enforcement difficult
64
"Impecunious claimant company" condition
The claimant is a company and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so
65
What must the defendant show to satisfy the impecunious claimant company condition?
a) There is "reason to believe" that the company WILL be unable to pay its costs; and
b) the amount of the likely costs
66
"Claimant moving assets" condition
The claimant has taken steps in relation to its assets that would make it difficult to enforce and order for costs against it
67
Other grounds for security for costs (not prescribed conditions)
- C has changed address since bringing the claim with a view to evading the consequences of the litigation
- C failed to give an address in the claim form
- C is acting as a nominal claimant and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so
68
Alongside satisfying the grounds for security for costs, D must satisfy the court that it is
just to make an order
69
"Justness" factors that the courts consider when deciding whether to grant security for costs to D
- The strength of the claim and the defence
- C's ability to give security
- The causes of the claimant’s impecuniosity
- If C has sufficient assets in the jurisdiction
- application must be brought promptly
70
Rule from Jirehouse Capital v Beller which makes it easier for defendants to obtain security for costs from companies
defendant may be able to show that there is ‘reason to believe’ that the claimant company will be unable to pay EVEN IF the claimant company can present substantial evidence to the contrary
71
security for costs will only be granted by the court if
it is satisfied, having regard to all the circumstances of the case, that it is JUST to make such an order
72
Does the court have to grant security for costs if the grounds are made out?
No, security for costs is DISCRETIONARY
73
The witness statement for D's application for security for costs should
- establish that a condition exists, and persuade the court it is just to exercise its discretion in favour of the defendant;
- set out the factors relevant to the court’s discretion, such as the location of the claimant’s assets;
- detail and justify the amount of security sought and refer to the defendant’s costs budget; and
- cover any earlier request made for security and any response.
74
where the court makes an order for security for costs, it will specify
- the amount of security
- the date by which it must be provided
- the form it will take
75
Outcome if C does not comply with the court order for security for costs
the court could order that the claim be struck out and D could be entitled to apply without further order for judgment to be entered with costs to be assessed
76
An impairment of a claimant’s right of access, which is disproportionate to the need to protect the defendant, is likely to be a breach of
Article 6 ECHR
77
An application for security for costs must be supported by
written evidence, usually a witness statement
78
amount of a security of costs is entirely within
the court’s discretion
79
The most frequent order for security for costs is
for a sum to be paid into court by a required date
80
Aside from the ability of the C to comply with an order of security for costs, the court will look at other factors, including:
Sham
Prospect of success
Admission
Payment into court
Oppression
Defendant’s fault
Delay
81
How long does an interim injunction last?
until trial or further order
82
Breach of an injunction is potentially punishable as
contempt of court
83
a mandatory injunction requires the respondent
to do a specific act
84
a prohibitory injunction requires the respondent to
refrain from doing an act
85
quia timet injunctions allow
both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed
86
An injunction may be granted where it is
just and convenient
87
Which guidelines govern how the court should exercise its discretion to grant an interim injunction?
the American Cyanamid guidelines
88
Step 1 - American Cyanamid guidelines
is there a serious question to be tried?
89
How do the courts assess if there is a serious question to be tried?
The court must be satisfied that this is not "frivolous or vexatious” and that “there is a serious question to be tried”.
90
Step 2 - American Cyanamid guidelines
would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?
91
How do the courts consider the adequacy of damages?
The court will consider the issue from the applicant’s perspective.
Depending on the outcome of this analysis, the court might then go on to consider the same issue from the respondent’s perspective
92
Step 3 - American Cyanamid guidelines
where does the balance of convenience lie?
93
How do the courts ascertain where "the balance of convenience" lies?
if damages would not be adequate for either party, the court will consider a very broad range of factors to try to ascertain whether granting or not granting the injunction carries the lesser risk of injustice
94
What kind of remedy is an injunction?
equitable
95
What equitable principles will the court apply when determining whether to grant an injunction?
- An injunction will not be obtained when it would serve no practical purpose;
- the applicant must have 'clean hands'
- Excessive delay may lead to a refusal of the application
- it is a discretionary remedy so may not be granted even if the criteria are satisfied
96
The court might refuse to grant an injunction if the applicant has not come to court with
clean hands
97
An application for an interim injunction must be supported by
written evidence setting out the facts to justify the relief sought
98
A court will often decide to grant an interim injunction only if the applicant offers to make
a cross-undertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction
99
Can an application for an interim injunction be made without notice?
Yes
100
A without notice application for an interim injunction can only be justified if:
- There is exceptional urgency
- it is the best way to further the overriding objective
- All parties consent
- The court gives permission
- A court order, rule or PD permits or;
- A date for hearing has been fixed, a party wishes to make an application at that hearing and the party does not have sufficient time to serve an application notice
101
If the application is made without notice and the injunction is granted, it will be granted initially for
a limited period only and the court will fix a second hearing: the 'return date'
102
What orders can the court make at the second hearing / return date re an injunction?
- Maintain order (to keep the injunction in place until the trial of the substantive matter)
- Discharge the injunction / vary the terms of the injunction
- Enforce the applicant’s undertaking in damages if it transpires that the injunction should not have been granted
- Accept an undertaking by the respondent not to do the acts in question, in place of the injunction
103
Applicant's disclosure required for without notice application for interim injunction
full and frank disclosure of all matters of fact or law relevant to the application – including those which are or may be adverse to the applicant.
104
The applicant’s legal representatives must prepare a full note of the hearing
ASAP, which should be served on the respondent (and any other party affected by the order) without delay
105
In cases of exceptional urgency, a party can apply for an interim injunction
before a claim form has even been issued
106
The court will only grant an interim remedy before a claim has been issued if the matter is (2)
a) urgent; or
b) It is desirable to do so in the interests of justice
107
interim prohibitory injunction
an order preventing a party from doing a stated act pending determination of the dispute at trial
108
when should a party make an interim application?
as soon as it becomes apparent that it is necessary or desirable to make an application
109
Parties are under a specific obligation to ‘bunch’ their interim applications, meaning
the parties should issue any necessary interim applications to ensure that outstanding matters get dealt with at a single hearing wherever possible
110
Where the court makes a costs order against one party and the other party is not present when the order is made,
does that party’s legal representative need to notify them?
Yes, they must notify them in writing of the costs order no later than 7 days after the legal representative receives notice of the order
111
unless order
an order which provides for an automatic sanction in the event of non-compliance with an order. The unless order must specify the date and time within which the act must be done.
112
Can you cross-examine witnesses in an interim hearings?
If, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence
113
What is the court likely to do if a defence is vague or unclear but could be cured by amendment?
the court is unlikely to strike out without first giving the defendant an opportunity to cure it by amendment
114
Can a claimant apply for summary judgment if the defendant has not filed an acknowledgment of service?
A claimant may not apply for summary judgment until the defendant has filed an acknowledgment of service unless the court gives permission
115
the applicant's disclosure duty for all applications without notice
the applicant must make full and frank disclosure of all matters relevant to the application including matters of fact and law which might affect the judge's decision
116
What must the applicant demonstrate to persuade the court to grant the injunction?
American Cyanamid guidelines apply -
(1) the court must be satisfied on the balance of probabilities that there is a serious issue to be tried
(2) would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?
(3) where does the balance of convenience lie?
117
Following American Cyanamid guidelines, what should be considered by the solicitor and his client in relation to damages?
would damages be an adequate remedy for a party injured by the court's grant of, or its failure to grant, an injunction?
118
What is the most likely order that the court will make if a Claimant is awarded an interim payment that exceeds the damages awarded at trial?
Order the Claimant to repay the overpayment to the Defendant and award interest on the overpaid amount from the date the interim payment was made
119
'no order as to costs' for interim hearings
each party will bear its own costs in the application whatever the outcome at trial
120
A stay of proceedings
a period of time during which the proceedings are paused, and the parties are prevented from taking any steps in the proceedings, apart from steps allowed by the CPR or the terms of the stay
121
If all parties request a stay, the claim will be stayed for
a month
122
What happens if the case is not settled at the end of the stay period and the parties have not applied for an extension of the stay to continue negotiations?
the case will be referred to a judge for allocation and directions
123
If the defendant applies for summary judgment, what docs does the defendant NOT need to file?
acknowledgement of service or a defence until after the summary judgment hearing
124
if an applicant makes a with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as possible but not less than
3 clear days before the hearing
125
Who should pay the costs of making an interim application to amend particulars?
the party applying for an amendment will usually be responsible for the costs of and arising from the amendment
126
most likely costs order if a D is awarded security for costs
Costs in any event, because D is entitled to recover the costs of making the successful application irrespective of the outcome of the main case
127
When can the courts decide an interim application without a hearing?
if the parties have agreed on the terms of the order and submit a consent order signed in writing by both parties
128
When does Denton apply?
the tests for relief from sanctions
129
perpetual injunction
a final injunction (usually made at trial) that continues with no limitation of time
130
Safeguards for an interim application without notice
- Application must explain why no notice is given
- Application must draw the court’s attention to arguments and evidence in support of the respondent’s position
- After the hearing, they must serve:
- the application notice
- evidence in support
- The court must contain a statement of the respondent’s right to make an application to set aside or vary the order. Any order to set aside must be made within 7 days of the order being served on the other party.
131
For any without notice application, what disclosure must the applicant make?
the applicant must make full and frank disclosure of all matters of fact or law relevant to the application – including those which are or may be adverse to the applicant.
132
Extended step-by-step court process for considering American Cyanamid guidelines
(1) whether damages would be an adequate remedy
(2) whether the applicant’s cross-undertaking will provide adequate protection for the respondent
(3) Whether the balance of convenience lies in favour of granting or refusing the
injunction
(4) strength of each party's case / whether there is a serious q to be tried: Applicant must show real prospect of success
(5) any special factors? eg public policy
133
The American Cyanamid guidelines only apply to which kind of injunction?
PROHIBITORY
134
breach of injunctions is punishable as
contempt of court
135
Injunctions that can be made 'without notice'
- Freezing injunctions
- Search orders
136
What does a freezing injunction do?
Prevents a party from moving assets outside of the jurisdiction (E&W)
137
What must the applicant prove to be granted a freezing injunction?
- the court must be satisfied that the claimant has a good arguable case that the claimant has adduced sufficient evidence as to the existence and location of assets that would be affected, and
- a real risk that D may dispose of their assets so as to render any judgment which the claimant may obtain as being worthless;
- there is a serious issue to be tried on the merits of the case
138
Benefit of a search order
compels R to allow A to search their premises, where A believes that R has documents or property belonging to them
139
To grant a search order, the court must be satisfied that (3)
- A has a strong case;
- A will suffer SERIOUS harm otherwise;
- R has incriminating material that cannot be obtained by other means
140
Applications for a freezing injunction or search order are usually made to a
High Court judge
141
Freezing injunctions and search orders must be supported by what kind of evidence?
Affidavit evidence
142
For a freezing injunction, the affidavit must explain...
the risk that the assets will be dissipated
143
For a search, order, the affidavit should describe...
the premises and the relevant docs or property, and show a strong case that serious harm or serious injustice will be suffered if the order is not made.
Dispute Resolution
flashcards
Decks in class (19)
# Cards
-
DR Pre-Module36
-
ADR47
-
Pre-Action Conduct115
-
Responding to a claim79
-
Additional claims and changing parties67
-
Interim Applications143
-
Case management and costs171
-
Disclosure and Inspection101
-
Jurisdiction and choice of law58
-
Witness evidence58
-
Expert evidence58
-
Part 36 offers44
-
Trials and Enforcement96
-
Appeals33
-
Modes of Address/Courtroom19
-
Forms used for DR22
-
Legal Drafting - DR60
-
Costs27
-
Limitation8
