Case management, interim applications relevant to a claim

Question 1

Interim applications are applications MADE after?

Answer 1

the litigation has commenced BUT before it has reached trial.

Question 2

Application to the court is made by?

Answer 2

an application notice (Form N244).

Question 3

Applicant will request in its application AGAINST the respondent that?

Answer 3

the court either make an order OR issue directions.

Question 4

Procedure for making an application notice (N244) -
Where to make application:

Answer 4

Court where the claim has been started, transferred or where it has been listed for trial.

Question 5

Procedure for making an application notice (N244) -
Content of the application notice:

Answer 5

State briefly what order the applicant is seeking and why.

Question 6

Procedure for making an application notice (N244) -
Draft order:

Answer 6

Attach a draft of the order sought.

Question 7

Procedure for making an application notice (N244) -
Evidence:

Answer 7

Normally a witness statement of why the order OR direction is being requested
and evidence to support the facts relied upon.
CAN also rely upon the contents of the statement of case.
Any matters set out as evidence in the form MUST be verified by a statement of truth.

Question 8

Procedure for making an application notice (N244) -
Service:

Answer 8

Where an application is made on notice, MUST be served on the respondent 3 clear days BEFORE hearing.
For applications without notice (orders without notice).

Question 9

Procedure for making an application notice (N244) -
Consent orders:

Answer 9

Parties have agreed an order, can apply to the court for the order to be made by consent without attendance at a hearing.
Court MUST be given all the materials it needs to be satisfied it is appropriate to make the order.

Question 10

Procedure for making an application notice (N244) -
Orders without notice:

Answer 10

e.g., freezing injunctions OR search orders where notice would defeat the purpose of the application.
Generally, orders without notice to the other party CAN be given where there is exceptional urgency
OR the overriding objective of the CPR is furthered by doing so.
Made a copy of the order, applications notice, AND any supporting evidence MUST be served upon the respondent.
The respondent CAN apply to set aside OR vary the order within 7 days.

Question 11

Procedure for making an application notice (N244) -
Telephone and video conferencing:

Answer 11

1 hour OR less permitted.
If an application seeking an order WITHOUT notice to the other party, then not permitted.

Question 12

Summary judgment (part 24):

Answer 12

*Summary judgment is where a party seeks judgment quickly without the expense and delay of a trial.
*Useful where a party has filed a weak claim OR defence as it allows the court to order the statement of case (or the relevant part of it) be disposed of
AND the party will NOT be allowed to continue their claim OR defence.

Question 13

Available to both the claimant and defendant where the following test is met:

Answer 13

Claimant – prove the defendant has no real prospect of successfully defending the claim and there is no other compelling reason why matter SHOULD proceed to trial.
Defendant – prove the claimant has no real prospect of succeeding on the claim or issue
AND there is no other compelling reason why the matter should proceed to trial.

Question 14

Procedure for summary judgment application -
Request for summary judgment by applicant:

Answer 14

File form N244 and a witness statement in support explaining the meeting of the test for summary judgment.

Question 15

Procedure for summary judgment application -
Respondent:

Answer 15

Must be given:
14 days notice of the hearing
AND file and serve any written evidence at least 7 days before hearing.

Question 16

Procedure for summary judgment application -
Further evidence by applicant:

Answer 16

File and serve further written evidence in response to respondent’s position at least 3 days before hearing.

Question 17

Procedure for summary judgment application -
Possible court orders:

Answer 17

Claimant’s application granted – judgment entered and proceedings end, defendant pays the costs.
Defendant’s application granted – claim dismissed and proceedings end, claimant pays the costs.
Application dismissed – proceedings continue, losing party pays winner’s costs.
Conditional order – case proceeds if conditions met, that costs be in the case (decision on costs deferred).

Question 18

Interim payments (part 25):

Answer 18

Interim payment is an amount paid by a defendant to a claimant on account of a debt owed
OR damages sought before the court has made its final decision at trial.
Claimant MAY NOT seek an interim payment UNTIL after the time for acknowledgment of service has expired.

Question 19

Procedure for interim payments application -
Request for interim payment by applicant:

Answer 19

File form N244 requesting an interim payment and a witness statement in support explaining:
Amount requested and what it will be used for.
Amount of money likely to be awarded at final judgment.
Meeting of the grounds for an interim payment (grounds).

Question 20

Procedure for interim payments application -
Grounds:

Answer 20

Claimant must prove:
Defendant has admitted liability to pay damages OR some other sum of money to the claimant.
Claimant has obtained judgment AGAINST the defendant for damages to be assessed OR for a sum of money to be assessed.
Court is satisfied that if the case went to trial, claimant WOULD obtain a judgment for a substantial amount of money against the defendant.

Question 21

Procedure for interim payments application -
Respondent:

Answer 21

Must be given:
14 days’ notice of the hearing
AND file and serve any written evidence at least 7 days before hearing.

Question 22

Procedure for interim payments application -
Further evidence by applicant:

Answer 22

Can file and serve further written evidence in response to respondent’s position at least 3 days before hearing.

Question 23

Procedure for interim payments application -
Possible court orders:

Answer 23

Grounds have been satisfied for an interim payment; court has discretion to grant an order as follows:
Whether to make the order – not appropriate if issues are complicated or difficult issues of law still to resolve.
What should the amount be – should not exceed a reasonable portion of final judgment
(taking into account contributory negligence or any counterclaim).

Question 24

Interim injunctions (part 25):

Answer 24

*An interim injunction is an order that requires the party either to do something specific
OR refrain from doing something until the full trial has taken place.
*Aim of the injunction is to maintain the status quo until trial.
*For urgent matters OR where the court is satisfied that it would be in the interest of justice.
*Guidelines the court WILL follow on hearing an application for an interim injunction:
Serious issue to be tried?
Are damages adequate remedy for either side?
Does the balance of convenience lie in favour OR against granting the injunction?
Are there any other special factors?

Question 25

Procedure for interim injunction application -
Where to make application:

Answer 25

Court where the claim has been started, transferred OR where it has been listed for trial.

Question 26

Procedure for interim injunction application -
Content of the application notice:

Answer 26

State briefly what order the applicant is seeking and the reasons why:
Freezing injunction – prevents disposing of assets.
Search order – allows to enter premises and search for evidence.

Question 27

Procedure for interim injunction application -
Evidence:

Answer 27

Normally a witness statement of why the jurisdiction is being requested and evidence to support the facts relied upon.
Can also rely upon the contents of the statement of case.

Any matters set out as evidence in the form MUST be verified by a statement of truth.

Question 28

Procedure for interim injunction application -
Service:

Answer 28

Where an application is made on notice, MUST be served on the respondent 3 clear days before hearing.
For applications without notice (orders without notice).

Question 29

Procedure for interim injunction application -
Orders without notice:

Answer 29

Common with freezing injunctions OR search orders where notice would defeat the purpose of the application.
Generally, orders without notice to the other party CAN be given where there is exceptional urgency
OR the overriding objective of the CPR is furthered by doing so.
Made a copy of the order, applications notice, AND any supporting evidence MUST be served upon the respondent.

Question 30

Procedure for interim injunction application -
Cross undertaking:

Answer 30

Injunction granted; applicant MUST undertake to the court to pay any damages sustained by reason of the injunction IF it emerges the jurisdiction SHOULDN’T have been granted.

Question 31

Part 1 of the CPR sets out?

Answer 31

the overriding objective.

Question 32

Part 3 CPR gives the court a wide range of powers to?

Answer 32

actively manage a case.

Question 33

Courts are under a duty to further the overriding objective by?

Answer 33

actively managing cases using the powers given to the court.

Question 34

Parties are required to help the court?

Answer 34

further the overriding objective.

Question 35

The overriding objective is for the court to deal with cases:

Answer 35

*Justly and at a proportionate cost.
*Within a reasonable time.
*By proportionate use of court and parties resources.

Question 36

The overriding objective (rule 1.1) -
This includes:

Answer 36

Ensuring parties are on equal footing.
Saving expense
Dealing with cases in ways that are proportionate to:
Amount of money involved.
Importance of the case.
Complexity of the issues.
Financial position of each party.

Ensuring the case is dealt with expeditiously and fairly.
Allotting to a case an appropriate share of the court’s resources while taking into account the need to allot resources to other cases.
Enforcing compliance with rules, PDs, and orders.

Question 37

Court must give effect to the overriding objective when?

Answer 37

making procedural decisions.

Question 38

Active case management -
Examples by the court include (rule 1.4):

Answer 38

*Encouraging the parties to cooperate with each other in the conduct of proceedings.
*Identifying the issues at an early stage.
*Deciding promptly which issues need full investigation and trial and disposing summarily of others.
*Deciding the order in which issues are to be resolved.
*Encouraging the parties to use ADR and facilitating this.
*Helping the parties to settle the whole or part of the case.
*Fixing timetables or otherwise controlling the progress of the case.
*Considering whether the likely benefits of taking a particular step justify the cost of taking it.
*Dealing with as many aspects of the case as possible on the same occasion.
*Dealing with the case without the parties needing to attend court.
*Making use of technology.
*Giving directions to ensure that the trial of a case proceeds quickly and efficiently.

Question 39

Obligations on parties to help the court -
Parties are required to help the court further the overriding objective as follows (rule 1.3):

Answer 39

*Having a good understanding of the issues in dispute.
*Providing relevant information to the court promptly when such information is required.
*Responding promptly to any contact from the court to monitor compliance with directions.
*Ensuring that applications are made promptly.
*Keeping the court informed of any significant delays in the implementation of directions that have been given.
*Trying to resolve the dispute.

Question 40

Case management powers -
Powers given to the court include (rule 3.1):

Answer 40

*Extend or shorten time limits.
*Adjourn or bring forward a hearing.
*Require proceedings in HC to be heard by a divisional court of the HC.
*Require a party or a party’s legal representative to attend the court.
*Hold a hearing and receive evidence by telephone or using any other method of direct oral communication.
*Direct that part of any proceedings (such as counterclaim) be dealt with as separate proceedings.
*Stay the whole or part of any proceedings or judgment either generally OR until a specified date or event.
*Consolidate proceedings.
*Try two or more claims on the same occasion.
*Direct a separate trial of any issue.
*Decide the order in which issues are to be tried.
*Exclude an issue from consideration.
*Dismiss or give judgment on a claim after a decision on a preliminary issue.
*Order any party to file and exchange a costs budget.
*Take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.
*Make an order subject to conditions or to specify the consequences of failure to comply.
*Take into account compliance with pre-action protocols when giving directions.
*Order payment of money into court for non-compliance.
*Vary or revoke an order.
*Contact the parties to monitor compliance with directions.

Question 41

Track allocation:

Answer 41

Parties complete Directions Questionnaire (Form N181).
File form with proposed directions and costs estimates.
Claimants pay allocation fee.

Question 42

Track allocation -
Judge allocates claim taking into account nine principles set out in CPR 26.8(1):

Answer 42

*Financial value of claim
*Remedy sought
*Complexity of claim and evidence
*Number of parties
*Value of any counterclaim.
*Amount of oral evidence.
*Importance of claim to persons not part of proceedings.
*Views expressed by parties.
*Circumstances of parties.

Question 43

Track allocation -
When calculating value of claim, court will disregard:

Answer 43

*Amount not in dispute.
*Any claim for interest.
*Costs
*Any contributory negligence.

Question 44

Track allocation -
Small claims track (part 27):

Answer 44

claims NOT exceeding £10K.

Question 45

Track allocation -
Fast track (part 28):

Answer 45

claims BETWEEN £10K and £25K.
*Where the trial is estimated to last not more than a day.
*Where oral expert evidence at trial will be limited to –
One expert per party per field
AND
Expert evidence in two fields.

Question 46

Track allocation -
Multi-track (part 29):

Answer 46

claims EXCEEDING £25K.
*Where the trial is estimated to last for more than a day.
*Where each party will need to adduce oral expert evidence either from more than –
Two fields
OR
one expert in a particular field.

Question 47

The court can re-allocate a claim to a different track on the application of any party OR?

Answer 47

by the court

Question 48

Fast track -
Directions will normally be given at two stages in the case?

Answer 48

at allocation and on filing pre-trial checklists.

Question 49

Fast track -
Standard fast track directions contain?

Answer 49

a typical timetable for a fast-track case which requires a trial date within 30 weeks of the notice of proposed allocation.

Question 50

Fast track -
The Directions Questionnaire requires parties to?

Answer 50

attempt to agree directions
AND file a draft order for directions, whether or agreed or not, in the Directions Questionnaire.

Question 51

Fast track -
Parties have agreed directions, MUST comply with?

Answer 51

the requirements on PD 28.3.6.

Question 52

Fast track -
Dispute over directions, COURT can?

Answer 52

can reach a decision itself on paper OR arrange a short hearing (often by telephone).

Question 53

Fast track -
Standard fast-track directions based on PD 28.3.6 suggest the following timetable from the date of filing the Directions Questionnaire:

Answer 53

Disclosure and inspection of documents – 4 weeks.
Exchange of witness statements – 10 weeks
Exchange of expert’s report – 14 weeks.
Court sends pre-trial checklists – 20 weeks.
Parties file pre-trial checklists – 22 weeks.
Trial – 30 weeks.

Question 54

Multi-track:

Answer 54

*Any time after the claim has been allocated, the court CAN fix a CMC.
*Court will hold the CMC where it feels the need to identify and understand the real issues in disputes AND to consider if they can be narrowed before trial.
*Court will make the first order for directions and set a timetable for all the steps up to trial.
*Parties MUST try to agree appropriate directions OR respective proposals to the court, at least 7 days before the CMC.
*Court approves agreed directions, or issues own directions, the CMC is vacated.
*Party has legal representative, MUST attend the CMC.

Question 55

Multi-track -
Party MUST apply to the court if he wishes to vary any dates for a:

Answer 55

CMC
Pre-trial review
Return of a pre-trial review
Trial
Trial period

Question 56

Multi-track -
After the CMC, the court will issue directions and a timetable specific to the matter dealing with:

Answer 56

Disclosure and inspection of documents.
Exchange of witness statements
Exchange of Expert’s report (simultaneous exchange of separate expert evidence OR single joint expert).
Court sends pre-trial checklists.
Consider ADR
Parties file pre-trial checklists.
Trial.

Question 57

Non-compliance with orders, sanctions, and relief:

Answer 57

*Party fails to comply with an order, the other party CAN apply for an order for compliance
AND/OR the imposition of a sanction.
*Sanction is a penalty imposed by the court on a party failing to comply with a rule, order, OR direction.
*Sanction will take effect UNLESS defaulting party obtains relief.
*Court WILL NOT allow failure to comply with directions to lead to the postponement of a trial.
*Defaulting party SHOULD try to agree an extension of up to 28 days, provided this DOESN’T put any hearing dates at risk.
*Unable to agree, an application MUST be made to the court.

Question 58

Case and costs management in litigation:

Answer 58

court manages both the steps to be taken, and the cost to be incurred by the parties to proceedings that is recoverable from the other party,
so as to further the overriding objective of dealing with cases justly and at proportionate costs.

Question 59

CMC will also consider?

Answer 59

the question of costs.

Question 60

Costs and case management conferences -
Parties are required to file:

Answer 60

Costs budget (costs already incurred and those anticipated) with the Directions Questionnaire
BUT no later than 21 days before CMC.
Budget discussion report stating costs agreed and disagreed no later than 7 days before CMC.
Parties CAN’T agree costs, court will review costs, and make a costs management order
(justly and proportionate costs).

Question 61

At the end of the trial a party CAN be awarded costs by a costs management order either on?

Answer 61

Standard basis – recover the last approved or agreed costs budget UNLESS court directs otherwise.
Indemnity basis – costs are assessed in the normal way by the court.