3. Statements of Case & Interim Applications Flashcards
What are statements of case?
The first documents that are served between the parties and are served in sequence.
What are the specific formal documents served which are known as ‘statements of case’?
- claim form
- particulars of claim
- defence
- reply to defence
What two documents start the process?
claim form and particulars of claim
If a case is contested what will be filed?
a defence by the defendant
What does the claimant file after receiving defence?
a reply
What can the defendant file after receiving a reply and what does it triggers?
A counter claim which triggers the claimant needing to serve a defence to the counterclaim.
What must any party to proceedings serve if they require additional details of another party’s case?
PART 18 - A request for further information
A response to the request must be served.
What should a solicitor do if they discover a material error in the statement of case?
There is a possible effect of misleading the court.
To avoid, solicitor should advise client to amend the statement of case.
If client refuses, solicitor must cease to act but should not inform the court or any other party why.
What should only be included in statements of case?
- material facts
- facts relevant to case (no background)
- reference to point of law claim/defence is based on
- naming witnesses parties may call
- documents necessary to claim/defence
What is the rule on subsequent statements of case?
must not contradict or be inconsistent with an earlier one
What is the purpose of subsequent statements of case?
Court will allow a party to pursue an issue/claim/remedy not stated in the statement of case.
What is the structure and content of a claim form ?
- Heading
- Parties
- Brief Details of the Claim
- Statement of Value
- Preferred County Court Hearing Centre
- Defendant’s Address for Service
- Particulars of claim (less complex)
- Statement of Truth
- Address for Service
What is the information required in the ‘Heading’ section of a claim form?
- insert details of the relevant court
- court will assign claim number
- date of issue will be inserted
What is the information required in the ‘Parties’ section of a claim form?
- check D’s name + full address + postcode is correct to avoid striking out
- specific rules for describing individuals, sole traders, partnerships, and companies
What is the information required in the ‘Brief details of claim’ section of a claim form?
- concise statement
- nature of claim + remedy sought
What is the information required in the ‘Statement of Value’ section of a claim form?
- Specified claims: amount claims plus interest
- Unspecified claims: in County Court, must state if <£10k, OR >£10 but <£25k, OR >£25k, OR cannot say.
- Court fee payable on issue is based to the Statement of Value (up to max. £10,000)
What is the information required in the ‘Preferred County Court Hearing Centre’ section of a claim form?
- claimant names court to issue claim in
- court can transfer claim after issuing
What is the information required in the ‘Defendant’s Address for service’ section of a claim form?
- D’s title + full name + address + postcode
OR - solicitor’s details if instructed to accept service on D’s behalf.
What is the information required in the ‘Particulars of Claim’ section of a claim form?
- details of the claim
- if complex, POC can be separate to fit in all details required.
What is the information required in the ‘Statement of Truth’ section of a claim form?
- confirmation that facts stated are true
- must be signed by claimant or solicitor
What is the information required in the ‘Address of Service’ section of a claim form?
claimant or solicitor’s address
What is the structure and content of a Particulars of Claim Form (contract and tort)?
- Parties & status
- Facts
- Contract terms / Relevant Duty of Care
- Alleged breach
- Consequences of breach (contract) OR Causation (tort)
- Damages
- Interest
- Statement of Truth
If C alleges breach of contract, what will the POC deal with?
essential material facts that will establish the cause of action.
What informaton is included about the status of the parties in a POC?
Breach of Contract
- who the parties are
- confirmaton of their status (e.g. business)
What informaton is included about the facts/events in a POC?
Breach of Contract
- chronological events (material facts only)
- may include pre-contractual matters if they assist in establishing the claim.
What informaton is included about the contract terms in a POC?
Breach of Contract
- existence of a contract must be established
- date + type (written/oral) + parties + subject matter + and consideration)
- material terms (implied and expressed)
- if written, attach contractual documents
- if oral, include contractual words used, parties who used them, when and where they were spoken
What informaton is included about the breach alleged and particularised in a POC?
Breach of Contract
- specify which terms were breached and how
- first breach is alleged generally THEN
- under ‘PARTICULARS OF BREACH’ heading itemise/list exact details of alleged breach.
for particulars usually it explains what went wrong
What informaton is included about the consequences of breach in a POC?
Breach of Contract
- continutation of chronological events
- result of breach
What informaton is included about the damages/loss alleged and particularised in a POC?
Breach of Contract
- first loss alleged generally
- then itemised, showing what is being claimed and how it is calculated.
What informaton is included about claiming interest in a POC?
Breach of contract
for damages or repayment of debt court may award interest on sum outstanding, as long as it is claimed.
In breach of contract cases, what are three alternative ways of claiming interest on outstanding sum?
as opposed to claiming interest for damages or repayment of debt.
- rate specified in contract
- under statute (s 35, s69, commercial debt only)
- court’s discretion
For commercial debts, what are the rules on claiming interest and the rate?
- 8% per annum above the Bank of England’s base rate, on the date the debt became due for payment.
- C also entitled to a small statutory compensation for inconvenience of debt recovery.
How is interest claimed for unspecified claims for damages?
- Under s35 - high court (claims above 100k or 50k PI)
- Under s69 - county court (claims below 100k or 50k PI)
How is interest calculated for specified claims?
Breach of Contract
- as a lump sum for the amount that has accrued from date of breach up to date of issue of proceedings
- PLUS a daily rate to easily provide an updated total.
Interest on Specified Claims Calculation
Breach of Contract
Example:
* Outstanding sum: £13,000
* Date of breach: 12 September
* Date of issue of the proceedings: 31 October
* Contract rate: 20%
C is entitled to interest on £13,000 for 50 days
Daily rate: (13k) x (20%) ÷ 365 days (rounded down)
* £7.12
Interest to claim: £356.00
What is the effect of the daily rate on interest for specified claims?
Breach of Contract
Daily rate is added to the outstanding balance for each day that passes up until judgment is awarded.
When calculating the daily rate for interest on specified claims, what is the first and last day?
Breach of Contract
First day: date of breach
Last day: Date of issue of proceedings
If C alleges negligence, what will the POC deal with?
essential material facts that will establish duty, breach, causation, and loss.
What interest on damages can be awarded?
Tort of Negligence
Court has discretion to award interest on damages in any negligence claim in accordance with relevant statute for High Court claims and County Court claims.
When is interest calculated/awarded from?
Tort of Negligence
From when the loss was sustained.
For damages alleged, what must be set put in the POC for specified and unspecified claims?
Tort of Negligence
- Specified: set out nature and amount of losses
- Unspecified: indicate the range of damages sought
What is the purpose of the defence?
to highlight what issues are in dispute
What must a defence state for each allegation claimed?
whether it is:
* denied
* not admitted OR
* admitted
Where a defendant denies an allegation, what must they state?
- their reasons for doing so; and
- their own verison of events if different from that given by the claimant.
When is a non-admission in a defence made?
where the defendant has no knowledge of the particular matter alleged.
What is the effect of denial and non-admission in a defence?
The claimant will need to prove the allegation.
What is the effect of missing an allegation?
triggers rule of implied admissions + deemed to be accepted
When drafting the defence, what are the contents included to be CPR compliant?
- the name of the court;
- the claim number;
- the parties;
- the title (DEFENCE);
- the date and signature of solicitors in the name of the firm;
- the statement of truth; and
- details of who is to be served and where
If D alleged that limitation period has expired, what must they do?
- D must include details of this in the defence
- Burden of proof sh
If D alleged that limitation period has expired, who must prove this?
Burden of proof is on the claimant to show that the claim is not time-barred.
If D alleged that limitation period has expired, in what instances will the burden of proof be on them?
- contributory negligence; and
- a failure by the claimant to mitigate its loss
When does a classic counterclaim arise?
CPR 20.4
when the defendant is alleging they have their own cause of action against the claimant.
When is a counterclaim relevant?
CPR 20.4
will be relevant if the defendant has actually suffered loss that is attributable to the claimant.
treated as if it were a claim
What are the elements of a classic counterclaim?
how to start + permission + no reponse + set-off
How to Start: include in defence.
Permission: not required unless defence has been filed.
No Response: can apply for default judgment.
Set-Off: if successful can reduce the amount awarded to C by counterclaim amount.
What is an additional claim?
Defendant makes an additional claim for a contribution, indemnity, or another remedy against any person whether or not they are an existing party.
When can a claim for an indemnity arise?
- Indemnity claim can result from a contractual relationship.
- Third party obligated by terms of the contract to indemnify the defendant if they’re found liable.
- Indemnity claims can also arise through statute.
When can a claim for contribution arise?
CPR 20.6
- Contribution claim is possible with joint wrongdoers.
- Defendant argues third party is partially responsible for claimant’s harm.
What are the elements of an additional claim for contribution?
how to start + requirement + permission + no response
How to Start: serve contribution notice with defence.
Requirement: obligation to pay.
Permission: only after defence has been filed.
No Response: deemed to admit claim.
What is an additional claim for third party contribution?
CPR 20.7
Defendant brings an additional claim against an existing party and a third party.
What are the elements of an additional claim for third party contribution?
how to start + requirement + permission + no response
How to Start: issue a claim form.
Requirement: obligation to pay.
Permission: only after defence has been filed.
No Response: deemed to admit claim.
When is a reply to defence used?
- Used by claimant to respond to matters in the defence
- To address issues not covered in the particulars of claim
Is a claimant obliged to file a reply to defence?
No
What is the time limit on filing a defence to counterclaim?
- claimant must file within 14 days
- unless agreed extension up to 28 days with defendant
if missed: judgment in default
What is the procedure for amending statements of case after filing but before service (within the limitation period)?
amendments can be made at any time
What is the procedure for amending statements of case after filing AND after service (within the limitation period)?
Only with:
- written consent of all parties; OR
- permission of the court
When applying for permission to amend statements of case, what must the applicant do?
- file a copy of statements of case + amendments + an application notice
How does the court decide on whether to grant an amendment?
- Considers the overriding objective of a just and cost-effective case resolution.
- Balances potential injustice to the applicant if denied against harm to the opposing party and other litigants if allowed.
What are the three circumstances in which the court may allow an amendment after the expiration of the limitation period?
- To add or substitute a new claim if it arises from the same or substantially the same facts as an existing claim.
- To correct a genuine mistake in the name of a party.
- To alter the capacity in which a party makes a claim.
What is the purpose of requests for further information?
for matters reasonably necessary + proportionate to prepare case.
What is the procedure for making a request for further information?
- serve written request on another party with time to respond
- request must be concise, relevant, and proportionate
- header: name of court, title, case number, and state Part 18 request
What is the procedure for responding to a request for further information?
- respond in writing (signed and dated)
- serve on all parties and file with court
- verified by statement of truth
What happens if a request for further information is not answered or cannot be fulfilled?
- An application can be made to court.
- The court will grant the order if it finds the request reasonably necessary and proportionate for the applicant to prepare their case or understand the case against them.
What are interim applications?
Applications made after litigation starts but before the trial
What are the purposes of interim applications?
- ensure compliance with procedural matters (e.g. jurisdictional issues)
- request more time (e.g. to serve claim form/defence)
- assist in preparation for trial (e.g. seeking disclosure of docs)
- consider penalties (e.g. sanctions + reliefs)
What is the test for interim applications?
if it is necessary or desirable i.e., parties cannot resolve.
What is the process of applying for an interim order?
- complete notice of application using Form N244
- attach supporting evidence
- attach draft order
- pay fee
Which court should an interim application be made in?
the court where the claim started or, if relevant, transferred to.
What must an application notice for an interim order state?
- what order is being sought and why
- set out facts or, if complex, file witness statement
- may rely on contents of statements of case
- must be verified by statement of truth
What should be attached with an application notice for an interim order?
- Evidence: include facts + supporting evidence + anticipate opponent’s case.
- Draft order: to assist the judge in complex cases
When must an interim application notice be served on the opponent?
At least 3 clear days before court hearing
What is the meaning of clear days?
Clear days means that the date of service and of the hearing are excluded, as well as weekends and bank holidays
What is the purpose of consent orders?
Parties can apply to the court for a consent order if they have reached an agreement on the required order, eliminating the need for a hearing.
What is the main advantage of a consent order?
Saving of costs and time for all concerned.
What must parties provide with a consent order?
any necessary material to demonstrate that the order is appropriate - often a simple letter.
What is the general rule on making interim applications?
- must be made on notice to the other party.
This ensures that the opponent is aware of the application so they may file evidence in response and arrange for
attendance at the hearing.
What are the two exceptions to the general rule of notice when making interim applications?
- there is exceptional urgency; or
- the overriding objective of the CPR would be best achieved by making an order without notice
examples: freezing injunctions + search orders
What must the evidence of a without notice interim application explain?
why notice was not given
What is the applicant’s duty when making a without notice interim application?
full and frank disclosure
- cannot take advantage of respondent’s absence at hearing
- must draw the court’s attention to evidence and arguments they reasonably anticipate the respondent wishes to make.
What documents must be served on the respondent in an application without notice?
- court order
- application notice; and
- any supporting evidence
When must a without notice interim application be served on the opponent?
ASAP
as soon as it is practicable to do so
What can a respondent do after being served with an application without notice?
- may apply to set aside OR
- vary the order
within 7 days of service of the order upon them.
What is the general rule regarding the type of hearings conducted by phone/video?
General rule: interim applications with a time estimate of 1 hour or less are conducted by telephone whenever possible.
What is the exception the rule of conducting hearings by phone or video conference?
Exception: hearing of an application made without notice to the other party is not permitted.
What is the general rule for interim costs?
loser pays the winner’s costs.
thus, if application granted, normal to order respondent to pay applicant’s costs.
What does the type of cost order for interim costs depend on?
nature of application + conduct of parties
What are three types of interim costs orders?
- Named party’s costs (in any event)
- Costs in the case
- No order as to costs
What is the effect of ‘named party’s’ costs order?
The party named in the order is entitled to receive the costs of the interim application, regardless of any other cost orders in the case.
When are named party’s costs orders assessed and when must they be paid?
- summarily (instantly) assessed
- must be paid within 14 days.
When would a ‘named party’s’ cost order apply?
- clear ‘winner’
- unsuccessful party ordered to pay the costs
What is the effect of a ‘costs in the case’ order?
- only become apparent who will be costs at the conclusion.
- winner at trial gets costs of interim hearing
When would a ‘costs in the case’ order apply?
- if the court makes a conditional order
- example: D may continue defence proceedings as long as a full defence if filed within 14 days.
Failure to do so = C receives costs.
What is the effect of a ‘no order as to costs’?
- each party bears its own costs in the application whatever result at trial.
When would a ‘no order as to costs’ apply?
- outcome of interim application is a draw/neutral
- neither party is at fault
What is the effect of a ‘thrown away’ costs order?
- the loser of the litigation/overall hearing is liable for costs
What are the defendant’s options of respond once served with a claim?
- do nothing + C applies for default judgment
- admit the claim = claim enforced
- file full defence = case proceeds to trial
- summary judgment
What is a summary judgment - Part 24?
when a party seeks judgment quickly without the expense and delay of a trial.
When is a summary judgment (Part 24) useful?
If a party has filed a weak claim or defence
What is the effect of a summary judgment (Part 24)?
Allows the court to order that whole or part of the statement of case be disposed of and the party will not be allowed to continue their weak claim or defence.
What is the test for applying for summary judgment?
- no real prospect of success for claim/defence
- no compelling reason why the matter should proceed to trial
BOTH MUST APPLY FOR SJ TO SUCCEED
What are examples of ‘compelling reasons’ with regards to summary judgment?
- more time needed for investigations
- claim/defence is highly complicated and technical
- need to hear from witnesses
What is the procedure for an applicant for summary judgment?
- File form N244
- Witness statement applying test
What are the time limits for a summary judgment?
- 14 days notice of the hearing given to respondent
- 7 days before hearing respondent must file/serve written evidence
- 3 days before hearing applicant can submit further evidence in respond to respondent
What are the possible court order for summary judgment?
- Application granted
- application dismissed
- conditional order
What is the effect of a claimant’s summary judgment application being granted?
- judgment entered
- proceedings end
- defendant pays costs
What is the effect of a defendant’s summary judgment application being granted?
- claim dismissed
- proceedings end
- claimant pays costs
What is the effect a summary judgment application being dismissed?
- proceedings continue
- case management directions given
- losing party pays winner’s costs
What is the effect of a conditional order to a summary judment?
- case proceeds if conditions met
- costs in the case (costs decision deferred)
When will the court make a conditional order for summary judgment?
where the court concludes that it is possible, but not probable, that the claim/defence will succeed.
What are the possible costs orders for D/C succeeding in summary judgment application?
- C succeeds for a specified sum = fixed costs
- C succeeds for unspecified claim = D pays costs once summarily assessed + disposal hearing for damages
- D succeeds summary judgment (struck out) = C pays once summarily assessed
What is the purpose of security for costs and who is it available to?
Purpose: D concerned C will be unable to pay their costs.
Available for: D only.
What is the test for security for costs?
- just to make an order
- 1 or more key conditions met
What are the key conditions for a security for costs order?
- Outside jurisdiction
- Reason to believe company is unable to pay
- Moved assets
Who can apply for an interim injunction in support of their cause of action?
either party (defendant and/or claimant)
When can a party apply for an interim injunction?
- any time after proceedings begin
- exceptional circumstances: before proceedings
What is the test for an interim injunction application being granted?
Court must be satisfied that the matter is:
- urgent OR
- desirable in the interests of justice
What is the effect of the court granting an interim injunction?
- remain in force until matter comes to trial OR further order
- court will then decide whether or not to make a final injunction
What is an interim injunction?
An order requiring the party either:
- to do something specific
- refrain from doing something specific
Until the full trial has taken place.
What is a Part 25 application?
an interim injunction application
What is a Part 24 application?
Summary judgment application
What is the aim of an interim injunction?
to maintain the status quo until trial
How is an interim injunction different from other court orders?
breach is punishable as contempt of court
What type of remedy is an interim injunction and when is it granted?
- discretionary remedy
- only granted when damages are not an adequate remedy
What are the guidelines used by the court when hearing an application for an interim injunction?
- Is there a serious question to be tried?
- Are damages an adequate remedy?
- Does the balance of convenience lie in favour of granting or refusing the injunction?
- Are there any other special factors?
Where to make an interim junction application?
court where the claim started, transferred to, or listed for trial.
What is cross-undertaking?
- When an injunction is granted, the applicant must undertake to the court to pay any damages that the respondent/affected party sustain by reason of injunctions
- Only IF it is later revealed than the injunction ought not to have been granted.
What is the procedure of applying for an interim injunction?
by way of an application notice + witness statement
What is the procedure of interim injunctions obtained with notice?
- defendant has prior warning
- last until trial OR
- can be set side earlier by court
What is the procedure of interim injunctions obtained without notice?
Part 25
- defendant has no prior warning
- court may grant it if good reason to do so (e.g. preventing harm to claimant)
What are the two forms of an injunction without notice, and how do they differ in terms of duration and the process for setting them aside?
An injunction without notice can take one of two forms:
- A specified hearing date is set, and the injunction lasts until that date. It can be set aside if the defendant successfully argues against it.
- The defendant is informed they can apply on notice to vary or set aside the order. The injunction remains in force until the trial or a further order is issued.
What is a freezing injunction?
- without notice to prevent a party from disposing of assets
What is a search order (injunction) ?
- allows to enter premises and search for evidence
- without notice to prevent disposal of evidence
What evidence must accompany an interim injunction?
- witness statement
- verification by statement of truth
How are freezing injunction and search order applications made and to who?
- Made to a High court judge
- supported by an affidavit
What is an interim payment?
an advance payment on account of any damages, debt or other sum (excluding costs) that a
defendant may be held liable to pay.
What is the effect of an interim payment?
enables a claimant who has a strong case on liability to avoid the financial hardship and/or inconvenience that might otherwise be suffered because of any delay during the period between the start of the claim
and its final determination.
What is a voluntary interim payment?
Claimant should try to obtain an interim payment from the defendant or the defendant’s insurance company before pursuing an application through the court.
When can a claimant seek an interim payment, and is there a limit to the number of applications they can make during the proceedings?
- A claimant can seek an interim payment only after the time for acknowledging service has expired.
- There is no specific limit to the number of applications they can make during the proceedings.
What is the time limit for serving an application notice for an interim payment?
- claimant must serve notice at least 14 days before hearing
- if defendant wishes to respond must be at least 7 days before hearing
- if claimant wishes to respond with further evidence must be at least **3 days **before hearing.
What information should be included in the evidence when making a request for an interim payment?
- The requested amount and its purpose.
- The estimated final judgment award amount.
- Reasons demonstrating that the requirements specified by the CPR are met.
What are the grounds that must be satisfied before the court will grant an interim payment and who is the burden of proof on for one of the grounds?
(a) D has admitted liability.
(b) C has obtained judgment against D for damages or sum of money.
(c) Court’s satisfaction that C would obtain judgment for a substantial amount of money (excluding costs).
Burden of proof ground (c): on the claimant to prove on the balance of probabilities that they will succeed.
When is an interim payment likely to be made?
when there is a delay in the assessment of damages (complex cases)
After establishing entitlement to an interim payment, what will the court consider?
- Should an order for an interim payment be made? (complexity of making ut)
- If yes, what should the amount be? (reasonable proportion of final amount + consider contributory negligence and counterclaims)
What is the effect of a granted interim payment on trial?
Trial judge will not be told about the order (voluntary or not):
- until they have determined all issues of liability; OR
- unless the defendant consents.
If a solicitor signs a statment of truth on behalf of the client, do they sign in their name or the firm’s name?
must sign in their own name and not that of their firm or employer.
When a statement of truth is signed by a party’s solicitor on their behalf, who does it refer to?
it will refer to the party’s belief, that the facts stated in the document are true.
If a solicitor signs statements of case on behalf of the client, do they sign in their name or the firm’s name?
A statement of case prepared by a solicitor must be signed in the name of the solicitor’s firm.
What requirement is there regarding the time estimate for an application notice ?
An application notice must include a time estimate for how long the hearing of the application is likely to last.
When is a claimant allowed to apply for summary judgment?
A claimant can apply for summary judgment only after the defendant has filed an acknowledgment of service or served a defence in the legal proceeding.
When can a claimant apply for an order for an interim payment?
only after the end of the period for filing an acknowledgment of service applicable to the defendant against whom the application is made.
