7. Civil Summary- Judgement, Part 36 & Offers

Question 1

Which form is used to apply to court

Answer 1

Form N244

Question 2

What are the parties referred to

Answer 2

person making the application = applicant, party against whom the order is sought is the respondent

Question 3

where must the application be made

Answer 3

to the court where the claim has started/where claim has been sent

Question 4

what must an application notice state r23.6

Answer 4

What order the applicant is seeking and why they are seeking it

Question 5

when must a case summary and draft order be filed in multi track cases

Answer 5

no later than 4pm at least 2 days before the hearing

Question 6

when must application notice be served

Answer 6

at least 3 clear days before court deals with it

Question 7

what must an application notice be accompanied by

Answer 7

a copy of supporting written evidence/copy of any draft order

Question 8

when can an order be made without notice being given to the other side Para 3 PD 23 A

Answer 8

where there is exceptional urgency
where the overriding objective is best furthered in doing so
by consent of all parties
court permission
date of hearing has been fixed, party wishes to make an application at that hearing but has insufficient time to serve a notice
court order, rule or PD

Question 9

what duty is imposed on an applicant on a without notice application

Answer 9

disclosure of any facts/other matters relevant to the court decision, even if adverse to their own case

Question 10

what must be provided for a court to be able to assess costs at the end of an application

Answer 10

statement of costs breaking down costs incurred relating to application

Question 11

how does a court award amount of fixed costs in fast track and intermediate track cases

Answer 11

as prescribed by CPR part 45, unless exceptional circumstances present

Question 12

difference between cost capping and costs management order

Answer 12

a costs management order is not a costs cap by another route, because the status of any such order is defined by CPR 3.18. It does not limit the costs recoverable unless varied. It is, instead, a matter to which the court on the detailed assessment will have regard and from which it will not depart unless satisfied that there is a good reason to do so

Question 13

in which circumstances will a court make a costs capping order

Answer 13

only in exceptional circumstances

Question 14

what is a cost capping order

Answer 14

(a) ‘costs capping order’ means an order limiting the amount of future costs (including disbursements) which a party may recover pursuant to an order for costs subsequently made; and

Question 15

who applies for a cost capping order

Answer 15

either party, typically D seeking to cap what claimant might recover

Question 16

when can a court make a cost capping order? r3.19(5)

Answer 16

if
a) it is in the interests of justice to do so
b)there is a substantial risk that without such an order, costs will be disproportionately incurred

whether there is a substantial imbalance between the financial position of the parties
whether the costs of determining the amount of cap are likely to be proportionate to the overall costs of litigation
the stage which proceedings have reached
costs incurred to date and future costs

Question 17

Does the fact that one of the parties have entered a conditional fee arrangement prevent costs of interim application being summarily assessed?

Answer 17

no

Question 18

what if the receiving party is CFa funded

Answer 18

court cant order payment unless they are satisfied that solicitor costs are immediately payable

Question 19

what if a party that is CFA funded does not have the funds to pay interim costs

Answer 19

court may decide to defer the payment of interim costs until the end of proceedings

Question 20

which procedure sets out the appeals process

Answer 20

Part 52

Question 21

when will an appeal be granted

Answer 21

only if the appeal has a real prospect of success, or there is some other compelling reason for the appeal to be heard r52.6

Question 22

when are appeals usually allowed

Answer 22

r52.21(3) if the OG decisions was either wrong/unjust due to a serious procedural/other irregularity

Question 23

what happens if an appeal is allowed

Answer 23

court orders a re-hearing

Question 24

mandatory grounds for setting aside a default judgment r13.2

Answer 24

where a default judgment was wrongly entered before defendant’s deadline for filing an acknowledgment of service/defence expired. can also set it aside after claim has been paid in full

Question 25

discretionary grounds to set aside a default judgment r13.3(3)

Answer 25

the defendant has a real prospect of successfully defending the claim; or

it appears to the court that there is some other good reason why-
i) the judgment should be set aside or varied or
ii) the defendant should be allowed to defend the claim

Question 26

when should defendant issue application

Answer 26

as soon as they became aware of the default judgment

Question 27

why is a prompt significant factor in setting aside a default judgment

Answer 27

if there is a marked failure to do so, court is justified in refusing relief, notwithstanding the possibility d may succeed at trial

Question 28

Tideland v Westminster CC

Answer 28

not necessary to act with utmost speed as possible, just with all reasonable speed

Question 29

3 step approach in Denton for adjudicating on grounds a and/or b

Answer 29

considering the seriousness and significance of the default

the reason for it

all the circumstances of the case

Question 30

how must an application to set aside a default judgment be set out

Answer 30

on notice, supported by evidence

Question 31

will D have to pay the costs for setting aside default judgment application

Answer 31

yes- it is his fault for the DJ having been entered

Question 32

what if proceedings were posted buy D did not receive them having moved to a new address

Answer 32

Akram v ADam- d has good reason for asking to set aside the judgment as they were unable to respond to no fault of their own

Question 33

what if default judgment is rejected

Answer 33

D ordered to pay C’s costs within 14 days

Question 34

orders a judge may make

Answer 34

set aside DJ, refuse application, make a conditional order

Question 35

what is a conditional order?

Answer 35

D pays into court the amount of the claim as they can reasonably afford (usually made where the application was made very late)

Question 36

who pays the costs where DJ set aside on a mandatory ground

Answer 36

claimant as they are at fault for entering judgment

Question 37

who pays the costs where DJ set aside on discretionary ground for good reason

Answer 37

neither side is at fault - costs usually in the case

Question 38

who pays the costs where DJ set aside on discretionary ground with a real prospect of success at trial

Answer 38

defendant

Question 39

when can a judge give a summary judgment r24.3

Answer 39

24.3 The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if—

(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

Question 40

what can a part 24 judgment application be based on

Answer 40

a point of law (inc construction of doc)
evidence which can reasonably be expected to be available at trial or lack of it
combination of these

Question 41

what is the purpose of a summary judgment Swain v Hillman

Answer 41

to summarily dispose of cases where there is no real prospect of success

Question 42

what is a compelling reason for an issue to be tried

Answer 42

something that requires more investigation/ difficult points of law

Question 43

circumstances in which a claimant cannot apply for summary judgment

Answer 43

until defendant has filed acknowledgement of service/defence

Question 44

procedure for summary judgment

Answer 44

• respondent to application given 14 days notice of the hearing date
• ## respondent informed of issues which it is proposed that the court will decide at the hearing

Question 45

what must an application notice for summary judgment include r24.5(1)

Answer 45

) The application notice must—

(a)state that the application is for summary judgment;

(b)identify concisely any point of law or document relied upon;

(c)set out or attach any written evidence on which the applicant relies;

(d)state that the applicant believes the respondent has no real prospect of succeeding on the claim, defence or issue to be determined;

(e)state that the applicant knows of no reason why the disposal of the claim, defence or issue should await trial; and

(f)draw the respondent’s attention to their right to rely on evidence opposing the application.

Question 46

what may a court decide when determining a summary judgment r24.6

Answer 46

24.6. When the court determines a summary judgment application it may—

(a)give directions as to the filing and service of a defence;

(b)give further directions about the management of the case;

(c)make its order subject to conditions in accordance with rule 3.1(3).]

Question 47

which rule sets out the interim remedies

Answer 47

r 25.1

Question 48

when can interim remedies be obtained?

Answer 48

prior to proceedings, during proceedings or after judgment

Question 49

when will a court be inclined to grant a remedy

Answer 49

where the matter is urgent/is otherwise desirable in the interests of justice

Question 50

when can a defendant apply for a part 25 interim relief

Answer 50

once they have acknowledge service/ filed a defence

Question 51

When can interim relief be granted without notice

Answer 51

where there are good reasons for not doing so (search order would alert a party to remove assets)

Question 52

what is a search order

Answer 52

order compelling respondent to allow their premises to be searched by applicant

Question 53

evidence for supporting interim remedies

Answer 53

witness statement
application notice
statement of case

Question 54

what is an interim payment

Answer 54

advance payment on account of damages, debt/ sums which a defendant may be liable to pay

Question 55

when might an interim payment be enforced

Answer 55

where a claimant who has a strong case on liability and needs to avoid financial hardship and/or inconvenience otherwise suffered due to delay during claim and final determination

Question 56

procedure for interim payment

Answer 56

• supporting evidence and application notice to be served 14 days before hearing date

Question 57

supporting evidence para 2.1 PD 25B

Answer 57

amount of interim payment being sought
items or matters in respect of which interim payment is sought
likely amount of final judgment
reasons for believing conditions for an interim judgment are satisfied
any other relevant matters

Question 58

main grounds for making interim payment r25.7

Answer 58

SECURITY FOR COSTS
Contents of this Part

Title Number
I INTERIM REMEDIES
Orders for interim remedies Rule 25.1
Time when an order for an interim remedy may be made Rule 25.2
How to apply for an interim remedy Rule 25.3
Application for an interim remedy where there is no related claim Rule 25.4
Inspection of property before commencement or against a non-party Rule 25.5
Interim payments – general procedure Rule 25.6
Interim payments – conditions to be satisfied and matters to be taken into account Rule 25.7
Powers of court where it has made an order for interim payment Rule 25.8
Restriction on disclosure of an interim payment Rule 25.9
Interim injunction to cease if claim is stayed Rule 25.10
Interim injunction to cease after 14 days if claim or counterclaim struck out for non-payment of fees Rule 25.11
II SECURITY FOR COSTS
Security for costs Rule 25.12
Conditions to be satisfied Rule 25.13
Security for costs other than from the claimant Rule 25.14
Security for costs of an appeal Rule 25.15
I INTERIM REMEDIES
Orders for interim remedies
25.1

(1) The court may grant the following interim remedies –

(a) an interim injunction(GL);

(b) an interim declaration;

(c) an order –

(i) for the detention, custody or preservation of relevant property;

(ii) for the inspection of relevant property;

(iii) for the taking of a sample of relevant property;

(iv) for the carrying out of an experiment on or with relevant property;

(v) for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly; and

(vi) for the payment of income from relevant property until a claim is decided;

(d) an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub-paragraph (c);

(e) an order under section 4 of the Torts (Interference with Goods) Act 19771to deliver up goods;

(f) an order (referred to as a ‘freezing injunction(GL)’) –

(i) restraining a party from removing from the jurisdiction assets located there; or

(ii) restraining a party from dealing with any assets whether located within the jurisdiction or not;

(g) an order directing a party to provide information about the location of relevant property or assets or to provide information about relevant property or assets which are or may be the subject of an application for a freezing injunction(GL);

(h) an order (referred to as a ‘search order’) under section 7 of the Civil Procedure Act 19972(order requiring a party to admit another party to premises for the purpose of preserving evidence etc.);

(i) an order under section 33 of the Supreme Court Act 19813 or section 52 of the County Courts Act 19844 (order for disclosure of documents or inspection of property before a claim has been made);

(j) an order under section 34 of the Supreme Court Act 19815or section 53 of the County Courts Act 19846(order in certain proceedings for disclosure of documents or inspection of property against a non-party);

(k) an order (referred to as an order for interim payment) under rule 25.6 for payment by a defendant on account of any damages, debt or other sum (except costs) which the court may hold the defendant liable to pay;

(l) an order for a specified fund to be paid into court or otherwise secured, where there is a dispute over a party’s right to the fund;

(m) an order permitting a party seeking to recover personal property to pay money into court pending the outcome of the proceedings and directing that, if he does so, the property shall be given up to him;

(n) an order directing a party to prepare and file accounts relating to the dispute;

(o) an order directing any account to be taken or inquiry to be made by the court; and

(p) an order under Article 9 of Council Directive (EC) 2004/48 on the enforcement of intellectual property rights (order in intellectual property proceedings making the continuation of an alleged infringement subject to the lodging of guarantees).

(Rule 34.2 provides for the court to issue a witness summons requiring a witness to produce documents to the court at the hearing or on such date as the court may direct)

(2) In paragraph (1)(c) and (g), ‘relevant property’ means property (including land) which is the subject of a claim or as to which any question may arise on a claim.

(3) The fact that a particular kind of interim remedy is not listed in paragraph (1) does not affect any power that the court may have to grant that remedy.

(4) The court may grant an interim remedy whether or not there has been a claim for a final remedy of that kind.

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Time when an order for an interim remedy may be made
25.2

(1) An order for an interim remedy may be made at any time, including –

(a) before proceedings are started; and

(b) after judgment has been given.

(Rule 7.2 provides that proceedings are started when the court issues a claim form)

(2) However –

(a) paragraph (1) is subject to any rule, practice direction or other enactment which provides otherwise;

(b) the court may grant an interim remedy before a claim has been made only if –

(i) the matter is urgent; or

(ii) it is otherwise desirable to do so in the interests of justice; and

(c) unless the court otherwise orders, a defendant may not apply for any of the orders listed in rule 25.1(1) before he has filed either an acknowledgment of service or a defence.

(Part 10 provides for filing an acknowledgment of service and Part 15 for filing a defence)

(3) Where it grants an interim remedy before a claim has been commenced, the court should give directions requiring a claim to be commenced.

(4) In particular, the court need not direct that a claim be commenced where the application is made under section 33 of the Supreme Court Act 1981 or section 52 of the County Courts Act 1984 (order for disclosure, inspection etc. before commencement of a claim).

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How to apply for an interim remedy
25.3

(1) The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.

(2) An application for an interim remedy must be supported by evidence, unless the court orders otherwise.

(3) If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given.

(Part 3 lists general powers of the court)

(Part 23 contains general rules about making an application)

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Application for an interim remedy where there is no related claim
25.4

(1) This rule applies where a party wishes to apply for an interim remedy but –

(a) the remedy is sought in relation to proceedings which are taking place, or will take place, outside the jurisdiction; or

(b) the application is made under section 33 of the Supreme Court Act 1981 or section 52 of the County Courts Act 1984 (order for disclosure, inspection etc. before commencement) before a claim has been commenced.

(2) An application under this rule must be made in accordance with the general rules about applications contained in Part 23.

(The following provisions are also relevant –

Rule 25.5 (inspection of property before commencement or against a non-party)
Rule 31.16 (orders for disclosure of documents before proceedings start)
Rule 31.17 (orders for disclosure of documents against a person not a party))
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Inspection of property before commencement or against a non-party
25.5

(1) This rule applies where a person makes an application under –

(a) section 33(1) of the Supreme Court Act 1981 or section 52(1) of the County Courts Act 1984 (inspection etc. of property before commencement);

(b) section 34(3) of the Supreme Court Act 1981 or section 53(3) of the County Courts Act 1984 (inspection etc. of property against a non-party).

(2) The evidence in support of such an application must show, if practicable by reference to any statement of case prepared in relation to the proceedings or anticipated proceedings, that the property –

(a) is or may become the subject matter of such proceedings; or

(b) is relevant to the issues that will arise in relation to such proceedings.

(3) A copy of the application notice and a copy of the evidence in support must be served on –

(a) the person against whom the order is sought; and

(b) in relation to an application under section 34(3) of the Supreme Court Act 1981 or section 53(3) of the County Courts Act 1984, every party to the proceedings other than the applicant.

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Interim payments – general procedure
25.6

(1) The claimant may not apply for an order for an interim payment before the end of the period for filing an acknowledgment of service applicable to the defendant against whom the application is made.

(Rule 10.3 sets out the period for filing an acknowledgment of service)

(Rule 25.1(1)(k) defines an interim payment)

(2) The claimant may make more than one application for an order for an interim payment.

(3) A copy of an application notice for an order for an interim payment must –

(a) be served at least 14 days before the hearing of the application; and

(b) be supported by evidence.

(4) If the respondent to an application for an order for an interim payment wishes to rely on written evidence at the hearing, he must –

(a) file the written evidence; and

(b) serve copies on every other party to the application,

at least 7 days before the hearing of the application.

(5) If the applicant wishes to rely on written evidence in reply, he must –

(a) file the written evidence; and

(b) serve a copy on the respondent,

at least 3 days before the hearing of the application.

(6) This rule does not require written evidence –

(a) to be filed if it has already been filed; or

(b) to be served on a party on whom it has already been served.

(7) The court may order an interim payment in one sum or in instalments.

(Part 23 contains general rules about applications)

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Interim payments – conditions to be satisfied and matters to be taken into account
25.7

(1) The court may only make an order for an interim payment where any of the following conditions are satisfied –

(a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;

(b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed;

(c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim;

(d) the following conditions are satisfied –

(i) the claimant is seeking an order for possession of land (whether or not any other order is also sought); and

(ii) the court is satisfied that, if the case went to trial, the defendant would be held liable (even if the claim for possession fails) to pay the claimant a sum of money for the defendant’s occupation and use of the land while the claim for possession was pending; or

(e) in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied –

(i) the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the court cannot determine which); and

(ii) all the defendants are either –

(a) a defendant that is insured in respect of the claim;

(b) a defendant whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988 or an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself; or

(c) a defendant that is a public body.

Question 59

when might court be hesitant to make an order for interim payment

Answer 59

if delay in assessment of damages is unlikely to be substantial

Question 60

on which grounds can a respondent not contest the application

Answer 60

poverty

Question 61

what does a court need to decide where applicant establishes entitlement to interim payment

Answer 61

whether to make an order- if so, the amount

Question 62

when might an interim payment be inappropriate

Answer 62

where issues are complicated, questions of law are difficult

where significant issues of causation remain

Question 63

what will a court consider as to the amount of interim payment to be rewarded

Answer 63

court must not make a payment of more than a reasonable proportion of the likely amount of the final judgment

Question 64

consequences of an interim order

Answer 64

a defendant making an interim payment that exceeds their total liability -> court invariably ordering repayment of excess (Wakefield v NJS)+ may award interest on overpaid amount from the date of interim payment

Question 65

when can a court make an order for security of costs r25.13

Answer 65

if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order

one or more of the conditions in part 25 applies

Question 66

which factors are relevant to court’s exercise of its discretion

Answer 66

strength of the claim+defence (open admission/settlement offers may undermine the application)

where claimant shows reasonable prospect of success

cause of c’s impecuniosity

Question 67

when should an application for security be made

Answer 67

as soon as practicable- delays may lead to courts being less willing to order security

Question 68

procedure for security application

Answer 68

• defendant writes to claimant asking for security to be provided voluntarily
• supporting evidence in writing
• application in relation to incurred costs and estimated future costs within a costs budget

Question 69

what happens if a court grants application for security?

Answer 69

will specify:

amount of security
date by which claimant must provide it
the form it is to take

Question 70

what does a claimant have to do if an application to provide security is approved

Answer 70

make a payment into court (Saurymper v Fishman) can be held by d’s solicitor/charge on property/suitable undertaking

Question 71

when else can a court impose security in addition to part 25

Answer 71

r3.1(5) - where a party fails to comply with a rule, PD or pre - action protocol

Question 72

in which situations do a court typically grant security for breach of r3.1

Answer 72

where there is a history of repeated breaches of the timetable/court orders/suspicion that a party is not acting in good faith Mealey Horgan v Horgan