4. Interim Applications

Question 1

Two things to show for summary judgment

Answer 1

Claim or defence has no real prospect of success (Swain v Hillmann) and no compelling reason for case to go to trial

Question 2

Difference between summary judgment and strike out

Answer 2

Summary judgment establishes liability for the whole claim; strike out deals with individual statements of case

Question 3

How does respondent dispute their case has no real prospect of success in summary judgment application?

Answer 3

Show their chance of success, even though perhaps less than 50%, is not fanciful

Question 4

Example of compelling reasons for the case to go to trial

Answer 4

D needs more time to investigate, expert evidence is needed, they can’t contact a witness

Question 5

When can the claimant apply for summary judgment without permission?

Answer 5

After D acknowledges / defends

Question 6

When can the defendant apply for summary judgment without permission?

Answer 6

Any point after proceedings commence

Question 7

Items to file when requesting an interim order

Answer 7

N244, supporting evidence, draft order, fee

Question 8

Deadline for serving on the other party when applying for summary judgment

Answer 8

14 days before hearing

Question 9

Deadline for respondent serving further evidence in a summary judgment application

Answer 9

7 days before hearing

Question 10

Deadline for applicant filing further evidence in a summary judgment application

Answer 10

3 days before hearing

Question 11

Deadline to file and exchange costs statement in an interim application

Answer 11

24 hours before hearing

Question 12

What is a conditional order as a response to summary judgment application?

Answer 12

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

Question 13

Effect of summary judgment application being dismissed

Answer 13

Case continues to trial

Question 14

Who can apply for security for costs?

Answer 14

Defendant, or Claimant in respect of a counterclaim, or Defendant against 3RP

Question 15

Two factors for ordering a security for costs

Answer 15

It’s just, and one of the prescribed grounds apply

Question 16

‘Just’ factor in favour of security

Answer 16

Respondent’s claim has little hope of success

Question 17

‘Unjust’ factors against security

Answer 17

Applicant is responsible for respondent’s financial straits; respondent has admitted liability in main claim’ applicant delayed making application

Question 18

6 prescribed grounds for ordering security for costs

Answer 18

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

Question 19

What is a Quia Timet or Precautionary Injunction?

Answer 19

Prohibitory or Mandatory Injunction aimed at preventing future wrongful act or omission

Question 20

Broad test for granting an injunction

Answer 20

Just and Convenient

Question 21

Three situations a court will not order an injunction

Answer 21

It would be practically pointless, applicant does not have clean hands, the application is excessively delayed

Question 22

Three steps from American Cyanamid

Answer 22

Serious question to be tried, would damages be an adequate remedy, balance of convenience

Question 23

What might the court require the applicant to offer to grant the injunction, and what is the effect?

Answer 23

Cross-undertaking in damages - applicant will pay damages to respondent or 3RP if it turns out the injunction was wrongly granted

Question 24

When will applicant get an interim injunction before the N1 is issued?

Answer 24

Urgent or interests of justice

Question 25

If the court grants a without notice injunction, how long does it last?

Answer 25

Until the second hearing / return date

Question 26

Four options for the court at the second hearing on a without-notice injunction

Answer 26

Maintain, cancel/vary, enforce undertaking in damages, accept respondent’s undertaking not to do X in place of an injunction

Question 27

How does the court ensure the respondent’s position is represented during a without-notice request?

Answer 27

Applicant must make a full and frank disclosure, including arguments for the other side

Question 28

General evidence for interim applications

Answer 28

Witness statement

Question 29

Evidence for Mareva injunctions

Answer 29

Affidavit

Question 30

When must the applicant serve the other side in a without-notice application?

Answer 30

As soon as the court decides on the injunction

Question 31

Deadline for serving an interim application

Answer 31

3 clear days before interim hearing

Question 32

How will the hearing on interim application take place?

Answer 32

Telephone if expected to last an hour; video conference if longer

Question 33

When can an interim application be dealt with without a hearing

Answer 33

Parties signed a consent order agreeing the terms of the order, Parties agree to forgo a hearing, court determines hearing not appropriate

Question 34

What is an interim payment?

Answer 34

An advance on potential winnings the claimant wants from defendant

Question 35

3 Grounds for interim payment

Answer 35

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

Question 36

Deadline for service of N244 in interim payment applications

Answer 36

14 days before hearing

Question 37

Which deadlines is the interim payment applications the same as?

Answer 37

Summary judgment

Question 38

True or false: D can withhold disclosure of interim payments made to the trial judge until the judge has decided liability and quantum

Answer 38

True