1.7 Interim Applications Flashcards
When should an interim application be made?
Before claim (court’s discretion)
- Urgency
- Interests of justice
Before commencing proceedings
After judgment given
=> As soon as it becomes apparent it is necessary/desirable
What is required for interim applications?
1) Application notice
- Sought order
- Reasons
- Prescribed form
- Supporting evidence (exhibits to persuasively argue and back up reasons, not subject to cross-exam, more relaxed rules, more weight than assertions)
- Draft order
- Application fee
- Costs schedule > Court (at least 24 hours before hearing)
=> File at court
=> As soon as pracicable (at least 7 days before court deals w app) => Serve on parties
UNLESS
- Exceptional urgency
- Overriding objective furthered
- All parties’ consent
- NO time to make app
- Court order/Rule/PD
- Party to make app at hearing (fixed date)
=> File within 7 days after order served on person making app
What are the grounds for summary judgments?
1) Point of law
AND/OR
2) Evidence > Can reasonably be expected available at trial/lack of
- Burden of proof > Applicant
- Real chance of winning > Better than merely arguable
- NOT fanciful (entirely w/o substance)
When may court make summary judgments against the parties?
1) NO other compelling reason why case/issue should be disposed of at trial
2) Either
- C has NO real prospect of succeeding claim/issue
- D has NO real prospect of defending claim/issue
What cases are not suitable for summary judgment (at judge’s discretion)?
Issues > Investigate at trial
Issues > Better addressed after disclosure/evidence hearing at trial
Multiple parties
Contested evidence > Testing at trial
Fundamental conflict of W evidence
Fraud
What is required for applying for summary judgment?
1) Claimant applies;
- After D filed acknowledgment of service > NO need for D to file defence until after app hearing
- After D filed defence
- Court’s consent/PD
=> Otherwise NO compliance w/ relevant pre-action protocol > Until compliance effected/time limit expires
2) Notice (app hearing)
- Written evidence
- Issues proposed at hearing
=> Other party (at least 14 days before hearing) (if opposed > at least 7 days before hearing)
3) Skeleton arguments
4) Court bundles
5) Draft order
6) Form N260 (costs schedule)
- 24 hours before hearing
What happens if the parties do not attend summary judgment hearing?
Court can set aside any order (just terms)
What is an Unless Order?
Force compliance on non-cooperating party
Otherwise > Defaulting party
- Strike out claim
- Adverse costs order made vs Defaulting party
What is required for relief from sanctions?
1) As soon as practicable
2) Supported by evidence
3) Made against;
- Strike out claims
- Evidence debarring
- Adverse costs order
What is the purpose of Interim payments?
Alleviate financial hardship
Avoid C feeling pressured into taking low offer
Especially where;
- Injuries NOT stabilised
- Full diagnosis, prognosis, care difficult to ascertain
What is required for an Interim Payment application?
Supporting evidence
- Sought sums + related items/matters
- Final judgment + supporting evidence > Estimate
- Application meets grounds > Reasons
- Other relevant matters
What are the grounds for Interim Payments?
D admits liability to pay damages/other sums to C
C obtained judgment vs D
- Damages to be assessed
- Sum of mony to be assessed
Court is satisfied > If claim went to trial > C would obtain judgment for substantial sum vs D (single/multiple)
C seeks order for land possession > Court is satisfied > If claim went to trial > D liable to pay sums to C for D’s occupation and use of land
C seeks order vs 2 or more Ds > Court is satisfied > If claim went to trial;
1) C would obtain judgment for substantial amounts vs at least one of Ds
2) ALL Ds > Insured/Insurer or Motor Insurance Bureau will insure Ds/Public body
What restrictions apply to interim payment orders?
Discretionary court award
- Made vs claims where damages are disputed/not yet clear
- On notice (appears to court > good reasons for not giving notice)
Either;
- Pre-action/Against non-party (CPR rules/PD)
- Before D files defence + acknowledgment of service
Amount
- NOT more than raesoanble proportion of likely final judgment
- Court to consider C’s contributory negligence, relevant set-off/counterclaim, possible instalment payments, interim payment net of state benefits
NOT cause injustice to paying party
NOT disclose to trial judge until after judgment (liability/damages) > UNLESS D consents
What is an interim injunction? What alternatives are there?
Equitable discretionary remedy
- High Court
- County Court (NOT search orders)
Party to do/refrain from action
- Otherwise contempt of court/punishable
Alternatives
- Expedited trial
- Trial of preliminary issues
What are the types of interim injunctions?
Search order
- Search of premises
- Seizure of assets > Prevent destruction
Order for delivery up
- Return unpaid
- Stolen goods
Freezing order
- Prevent disposal of assets
IP rights enforcement
Prevent publication of defamatory material
Restrain harassment
