8 Summary Judgment

Question 1

When might an interim application be made without notice?

Answer 1

• if urgent 23 PD 3(1)
• when object of order would be defeated by providing notice
• where other party not yet on court record (proceedings not yet served on D)
• insufficient time for formal notice as hearing date already fixed 23A PD 2.10

Question 2

what documentation is required for an interim application?

Answer 2

1. application notice
2. written evidence - 25.3(2)
3. draft order
4. bundle of documents
5. skeleton arguments

Question 3

SfC - when is someone a ‘resident’?

Answer 3

Individual: habitual/normal residence ⇾ Q of fact ⇾ BOP on D !!
Companies: central management & control (usually where incorporated)

Question 4

SfC CASE LAW

Answer 4

‘Company unable to pay’:

1. Re: Unisoft Group: Co would not (as opposed to may not) be able to pay debts, at the time of application, although court can take into account what will be expected in future
2. Jirehouse Capital v Beller: doesn’t mean that D has to show on a BOP that Co unable to pay ⇾ D may be able to show there is ‘reason to believe’ that Co won’t be able to pay even if Co can adduce substantial evidence to contrary

Question 5

SfC: exercise of discretion - what is the court’s main consideration?

Answer 5

ability of respondent to comply with any order for security for costs

Question 6

SfC: exercise of discretion - CASE LAW?

Answer 6

1. Olatawura v Abiloye: court must balance injustice to C w. injustice to D
   court must have regard to ‘all circumstances of the case’ ⇾ look at other factors:
2. Parkinson v Triplan:

Question 7

SfC - What was decided in Parkinson?

Answer 7

main factors identified:

1. whether C’s claim is bona fide (not sham);
2. whether application is being used to stifle genuine claim
3. delay in making application
4. whether C’s want of means was brought about by D’s conduct

Question 8

SfC - What was decided in Otalawura

Answer 8

court must balance injustice to C w. injustice to D

Question 9

SfC - Parkinson - what to consider when deciding if C’s claim = bona fide (not a sham)?

Answer 9

e. g.:
- C has reasonably good prospect of success
- any admissions made by D w. regard to liability

Question 10

SfC - what facts will court take into account when determining amount of securty?

Answer 10

• amount of D’s likely costs
• security given for whole action/to point in time
  amount can cover costs incurred
• deduction may be made for DA or possibility of settling
• amount respondent is likely to be able to raise ⇾ onus is on C to show it would be impossible (not just difficult) to comp

Question 11

What procedural variations are there in a SfC (c.f. other interim applications)?

Answer 11

1. AN should state which ground(s) /enactment applies
2. evidence (normally WS) should cover:
   - ground (e.g. if impecunious ground ⇾ exhibit steam to costs for likely costs to trial & accounts to show C unable to pay)
   - factors in exercise of discretion
   - amount of security requested

Question 12

SJ - sufficient for respondent to show SOME prospect - case law

Answer 12

1. Swain: ‘no real prospect’ doesn’t need amplification; words mean whether there is a realistic (as opposed to fanciful) prospect of success
2. International Finance Corp: ‘real’ means better than merely arguable

Question 13

SJ - SJ hearing is not a mini trial - case law

Answer 13

Swain v Hillman: not a mini-trial, but court doesn’t have to accept everything said by parties

Question 14

SJ - ‘compelling reason’ examples

Answer 14

1. if case highly complex
2. significant dispute on facts ⇾ needing cross-examination
3. D needs more time to investigate claim ⇾ e.g. need to contact material witnesses
4. need for expert evidence to be adduced

Question 15

SJ called - if obtained where C applied

Answer 15

JUDGMENT ON CLAIM

Question 16

SJ called - if obtained where D applied

Answer 16

Striking out / dismissal of claim

Question 17

SJ called - if NOT obtained

Answer 17

Dismissal of application

Question 18

What are the 4 possible hearing outcomes of SJ?

Answer 18

1. SJ obtained where C applied ⇾ Judgment on claim:
2. SJ obtained where D applied ⇾ Striking out / 3. Dismissal of claim:
   Dismissal of application:
3. Conditional order: claim continues on certain conditions e.g. order sum of money to be paid into court

Question 19

What type of interim cost orders might be made?

Answer 19

1. costs in any event
2. costs in the case
3. no order for costs

Question 20

How will costs be assessed if a ‘costs in any event’ order is made?

Answer 20

court will put figure on costs due ⇾ payable by losing party within 14d ⇾ ‘summary assessment’ 44.6(1)(a)