3. Statements of Case and Interim Applications Flashcards
What are the ways to claim interest in particulars of claim?
Contract rate on any outstanding sum
If no provision in contract for interest, commercial damages may be claimed under Late Payment of Commercial Debts (Interest) Act 1998 - entitled to 8% above base rate + statutory sum of compensation for inconvenience of having to recover debt
Court’s discretion:
* High court cases = s35A Senior Courts Act 1981
*County court cases = s69 County Courts Act
What is the rate for claiming interest in commercial damages under the Late Payment of Commercial Debts (Interest) Act?
8% per annum
PLUS additional small sum of statutory compensation for the inconvenience of having the recover the debt (varied amount depending on size of debt)
How do you calculate interest for specified claims?
Take contract interest rate, e.g. 20% and contract value, e.g. £13,000
Establish how many days interest is entitled for, e.g. 50
£13,000 x 20% / 365 = interest entitlement per day rounded down (£7.12)
£7.12 x 50 = £365 by way of interest
Do you write numbers as figures or words on particulars of claim form?
Figures
If a particular of claim is prepared by a solicitor, in what name must the particular be signed in?
Name of solicitor’s firm
Should losses be included in a particulars of claim?
Losses should be itemised so that the defendant knows exactly what is being claimed and how it has been calculated
What are the three responses the defendant can have to each issue within the claim?
Denied
Admitted
Non admitted
If a defendant does not respond to an issue, what is their response assumed to be?
Admitted
If a defendant denies an issue, who is the burden of proof then on?
Claimant
What is a Part 20 claim?
Additional claim by a Defendant against another party
Does the defendant always need permission of the court to file a Part 20 claim?
No, if the Part 20 is filed with the defence then do not need the court’s permission
Permission is needed to file one after defence has been filed
What are two types of Part 20 claims?
Claim for an indemnity
Claim for a contribution
Does a claimant have to reply to a defence?
No
If the defendant wish to amend a defence following its service, what steps can they take?
The defendant can ask for the claimant’s written consent to amend its defence
If consent is refused, the defendant can then make an application to the court to amend its defence
If the defendant wish to file a counterclaim, how should this be done?
Submit the counterclaim and the defence in the same document
If a defendant file a counterclaim, how many days does the claimant have to file a defence to the counterclaim?
14 days
What can be amended in a statement of case before the expiry of the limitation period but after service?
Anything can be amended but only with the consent of all the parties and the permission of the court
What can be amended in a statement of case after the expiry of the limitation period?
Court may allow an amendment on if it is:
1. To add/ substitute a new claim, if it arises out of the same or substantially the same facts as an existing claim
2. To correct a genuine mistake
3. To alter the capacity in which a party claims
NOTE THAT A CLAIM CAN BE ISSUED BUT NOT SERVED, AND THE LIMITATION PERIOD EXPIRED
What is a Part 18 request?
A written request for further information from one party to the other
When can a Part 18 claim be made?
Following the service of the particulars of claim, or defence
Is permission of the court required for a Part 18 request?
No - should always be done before applying to the court
What is the timeframe the other party have in which to respond to a Part 18 request for more information?
A reasonable time, imposed by the party making the request
Must be in writing, dated and signed by the party or their solicitor
What happens if a party doesn’t respond within the reasonable time to a Part 18 request?
The requesting party can apply to the court
When must a party serve a request for an interim judgment?
At least 3 clear working days before court hearing
How will the judge assess interim costs?
At the end of any interim application - general rule that loser pays winner’s costs
What does “costs in the case” versus “no order as to costs” mean?
Costs in the case = no party named and neither party to recover their costs at that time
No order as to costs = each party bear their own costs with regards to the interim application regardless of final judgement in the proceedings
What is a summary judgment?
Judgment given finding for a party without a full trial of the issues and hearing of evidence
When can the claimant apply for a summary judgement?
After defendant has filed acknowledgement of service or defence
What are the grounds on which the court will consider a summary judgment?
Claimant has no real prospect of succeeding, or
Defendant has no real prospect of succeeding
AND
There is no other compelling reason why the case should be disposed of at trial
How many days notice must the respondent be given before the hearing date for a summary judgment?
14 days
What is filed with the court at least 14 days before hearing for summary judgment?
By applicant - form N244 + witness statement
How many days before the hearing must a respondent to a summary judgment serve own evidence?
7 days
How many days before the hearing must the applicant for a summary judgment file and serve further evidence?
3 days
What are the 4 types of orders which the court may apply under a summary judgment?
- Judgement on the claim - claimant succeed in application and matter will proceed to enforcement
- Striking out or dismissal of the claim - defendant has succeeded in application to dispose of claimant’s claim and case comes to an end
- Application dismissed - applicant failed to bring case to early conclusion and it will now proceed to trial
- Conditional order - neither side won: made where court concludes it is possible, but not probable, that claim or defence may succeed; party will be allowed to continue with the litigation provided they pay a sum of money into court or take a specified step in relation to their claim
What are the implications if the court makes a summary judgment that the claimant’s application is granted?
Defendant pays claimant’s costs
Judgment entered and proceedings end subject to enforcement
What are the implications if the court makes a summary judgment that the defendant’s application is granted?
Claimant pays defendant’s costs
Claim dismissed and proceedings end
What are the implications if the court makes a summary judgment that the application for a summary judgment is dismissed?
Loser pays winner’s costs
Proceedings continue
What are the implications if the court makes a summary judgment for a conditional order?
Costs for the application are added into the case
Case proceeds if the conditions are satisfied
Made where it appears to the court possible that a claim or defence may succeed but improbable that it will do so - court can order payment within 28 days
What are the three types of interim remedies which a court may consider?
Interim injunction
Search order
Freezing order
When can a claimant seek an interim payment?
After the time for acknowledging service has expired
How many days before the hearing date must an application notice for an interim payment be served?
14 days
How many days before the hearing date must the respondent provide further information to counter an application for an interim payment?
7 days
Following the respondent’s submission of evidence to counter the application for an interim payment, if the applicant with to respond with further information how many days before the hearing date must this be done?
3 days
What are the CPR Part 25 grounds which must be satisfied before the court make an interim payment?
- Defendant has admitted liability, or
- Claimant has obtained a judgment against the defendant for damages to be assessed or for a sum of money, or
- Court is satisfied that, if the case went to trial, the claimant would obtain judgement for a substantial amount of money (other than costs)
What is the burden of proof for an interim payment?
High burden - on the balance of probabilities they will succeed
What sum can the court order for an interim payment?
No more than a reasonable proportion of the likely amount of the final judgment - must take into account contributory negligence and any counterclaim
