4. Interim Applications Flashcards
Two things to show for summary judgment
Claim or defence has no real prospect of success (Swain v Hillmann) and no compelling reason for case to go to trial
Difference between summary judgment and strike out
Summary judgment establishes liability for the whole claim; strike out deals with individual statements of case
How does respondent dispute their case has no real prospect of success in summary judgment application?
Show their chance of success, even though perhaps less than 50%, is not fanciful
Example of compelling reasons for the case to go to trial
D needs more time to investigate, expert evidence is needed, they can’t contact a witness
When can the claimant apply for summary judgment without permission?
After D acknowledges / defends
When can the defendant apply for summary judgment without permission?
Any point after proceedings commence
Items to file when requesting an interim order
N244, supporting evidence, draft order, fee
Deadline for serving on the other party when applying for summary judgment
14 days before hearing
Deadline for respondent serving further evidence in a summary judgment application
7 days before hearing
Deadline for applicant filing further evidence in a summary judgment application
3 days before hearing
Deadline to file and exchange costs statement in an interim application
24 hours before hearing
What is a conditional order as a response to summary judgment application?
Where the court refuses the application, but only allows the respondent to continue with the case if they fulfil conditions like paying money into the court
Effect of summary judgment application being dismissed
Case continues to trial
Who can apply for security for costs?
Defendant, or Claimant in respect of a counterclaim, or Defendant against 3RP
Two factors for ordering a security for costs
It’s just, and one of the prescribed grounds apply
‘Just’ factor in favour of security
Respondent’s claim has little hope of success
‘Unjust’ factors against security
Applicant is responsible for respondent’s financial straits; respondent has admitted liability in main claim’ applicant delayed making application
6 prescribed grounds for ordering security for costs
Respondent is in a jurisdiction without a reciprocal enforcement agreement with England; Respondent is a company and will be unable to pay costs; Respondent has attempted to fortify assets against enforcement; Respondent changed address since commencement to avoid the judgment; Respondent didn’t provide an address in the N1; Claimant is a nominal claimant and will be unable to pay costs if required
What is a Quia Timet or Precautionary Injunction?
Prohibitory or Mandatory Injunction aimed at preventing future wrongful act or omission
Broad test for granting an injunction
Just and Convenient
Three situations a court will not order an injunction
It would be practically pointless, applicant does not have clean hands, the application is excessively delayed
Three steps from American Cyanamid
Serious question to be tried, would damages be an adequate remedy, balance of convenience
What might the court require the applicant to offer to grant the injunction, and what is the effect?
Cross-undertaking in damages - applicant will pay damages to respondent or 3RP if it turns out the injunction was wrongly granted
When will applicant get an interim injunction before the N1 is issued?
Urgent or interests of justice
If the court grants a without notice injunction, how long does it last?
Until the second hearing / return date
Four options for the court at the second hearing on a without-notice injunction
Maintain, cancel/vary, enforce undertaking in damages, accept respondent’s undertaking not to do X in place of an injunction
How does the court ensure the respondent’s position is represented during a without-notice request?
Applicant must make a full and frank disclosure, including arguments for the other side
General evidence for interim applications
Witness statement
Evidence for Mareva injunctions
Affidavit
When must the applicant serve the other side in a without-notice application?
As soon as the court decides on the injunction
Deadline for serving an interim application
3 clear days before interim hearing
How will the hearing on interim application take place?
Telephone if expected to last an hour; video conference if longer
When can an interim application be dealt with without a hearing
Parties signed a consent order agreeing the terms of the order, Parties agree to forgo a hearing, court determines hearing not appropriate
What is an interim payment?
An advance on potential winnings the claimant wants from defendant
3 Grounds for interim payment
D has admitted liability with damages assessed later, D has admitted liability to pay damages / debt, if case goes to trial, c would obtain judgment for a substantial sum
Deadline for service of N244 in interim payment applications
14 days before hearing
Which deadlines is the interim payment applications the same as?
Summary judgment
True or false: D can withhold disclosure of interim payments made to the trial judge until the judge has decided liability and quantum
True
