Civil Applications Flashcards

Question

What test must be satisfied for interim payment?

Answer 1

The court must be satisfied that: (1) The amount does not exceed a reasonable proportion of the likely amount of the final judgment (taking into account any contributory negligence, set-off and/or counterclaim); (2) There's a need to be paid as soon as reasonably possible (e.g., there is urgent need such as medical treatment, provision of care, etc.).

Answer 2

CPR 25 and PD 25A (Procedure: CPR 23 application)

Answer 3

(1) Is there a sufficiently serious (substantial) issue to be tried? Is there an issue for which there is some supporting material and an outcome which is uncertain; (2) If so, on the 'balance of convenience' of each party, would it be fair and just? Considered in 3 stages: (i) Would damages be an adequate remedy? If so, then interim relief will not normally be granted; (ii) If damages would not be an adequate remedy for applicant, would applicant's cross-undertaking in damages provide adequate protection for respondent if court later found interim relief should not have been granted? (iii) If doubt as to adequacy of damages, court will consider factual circumstances ('special factors'). Where such factors remain evenly balanced, be prudent to preserve the status quo.

Answer 4

These Guidelines may need to be modified (or not applied at all) where the type of injunction applied for is subject to a different test.

Answer 5

The applicant will almost always be required to provide a cross-undertaking in damages (applicant is ready/has funds in case it was incorrectly granted).

Answer 6

CPR 25 and PD 25A (Procedure: CPR 23 application)

Answer 7

Only granted where the court considers it just and convenient to do so (s.37 SCA). In addition, case law has established specific conditions.

Answer 8

(1) Applicant has a cause of action (but note Broad Idea Case stepped away from strict cause of action requirement - mixed jurisdiction); (2) Applicant has a good arguable case; (3) Existence of the assets; (4) Real risk of dissipation of the assets (unjustified) making enforcement even difficult. Note that delay in applying can jeopardize the application and weaken argument that there is a real risk; (5) Applicant must provide undertaking in damages.

Answer 9

If done without notice, the applicant has an onerous duty of full and frank disclosure of all material facts (even if not in the applicant's favor) and must undertake to serve the respondent.

Answer 10

CPR 3.8-3.9 (Procedure: CPR 23 application or orally)

Answer 11

The court to consider the need to: (1) Conduct litigation efficiently at proportionate cost; (2) Enforce compliance with rules, practice directions, and court orders.

Answer 12

Stage 1: Identify and assess the seriousness of the non-compliance. Is it serious or significant? Persuade the court that the breach or default in question is not serious or significant. Stage 2: If it is, why did the default occur? Persuade the court there was a good reason. Mitchell: Non-completion of deadline or pressure of work is unlikely to constitute a good reason. Stage 3: Consider all the circumstances of the case to deal with the application justly, including the need to: (a) conduct litigation efficiently and at proportionate cost; and (b) to enforce compliance with rules, directions, and orders. Caliendo v Mishcon: Prejudice to the non-defaulting party may be a consideration for stage 3. However, this is only a subsidiary factor.

Answer 13

(1) Financial value (if any) - used to assess which track is generally appropriate; will disregard any amount not in dispute, claim for interest, costs and contributory negligence. If case involves more than one money claim, the court will generally regard the largest of them as determining the value (will not generally aggregate claims); (2) Nature of the remedy sought (e.g., injunction, declaration, law or evidence); (3) Likely complexity of the facts, law or evidence; (4) Number of parties or likely parties; (5) Value of counterclaim or other additional claim and complexity of any matters relating to it; (6) Amount of oral evidence which may be required; (7) Importance of the claim to persons who are not parties; (8) Views expressed by the parties; (9) Circumstances of the parties.

Answer 14

Procedure: CPR 23 application

Answer 15

CPR 3.1(2)(a): The court has the power to extend or shorten the time for compliance with any rule, direction or order (even if an application for extension is made after the time for compliance has expired).

Answer 16

CPR 32.10: If witness statement or summary is not served within time, the witness may not be able to give oral evidence unless the court gives permission.

Answer 17

CPR 35.13: A party who fails to disclose an expert's report may not use it at the trial or call the expert to give oral evidence unless the court gives permission.

Answer 18

CPR 31.21: A party may not rely on any document which it fails to disclose or permit inspection unless the court gives permission.

Answer 19

There must be compelling grounds as to the pertinence and indeed the necessity of that evidence, and exceptional circumstances which justify the failure to appreciate the need for it earlier.

Answer 20

Test: Courts are likely to consider it in the context of the overriding objective rather than relief from sanctions. Kaneria v Kaneria: The test for relief from sanctions should not be applied retrospectively where the deadline has expired, either directly or in a slightly watered-down version. In-time applications should be considered in the context of the overriding objective. Application for retrospective extension after deadline are commonly apply the relief from sanctions test (see Denton and CPR 3.9 rules above).

Answer 21

Greg v Stiring: The court held that, where an application to extend time is made after the time limit has expired, it would address the principles in CPR 3.9.

Answer 22

Al Hamad v Al Khafaf: Court applied relief from sanctions test for deadline. Applying Denton test, court held that failure to comply was serious and significant. However, the orderly and proportionate process of litigation was not threatened. The claim was granted. Coal Harbour v Regular: Applying Denton test, judge found breach was serious or significant and the default occurred without good reason. However, in a substantial claim, in all probability, just determination of case required the evidence. Currie v Thornley: Court allowed two letters that had been served after trial but before judgment to be admitted as evidence, allowing disposal of all relevant issues in interests of finality and avoid uncertainty, time and expense of re-litigation/unresolved aspects. Judge satisfied it was fair to admit them.

Answer 23

Jones v Pegg: If the new document has become available, it is not 'late'. The deadline has not yet finally passed, so it is not a relief from sanction argument. Simply put, you cannot disclose what is not available. Instead, it is a question of permission.

Answer 24

CPR 25 (Procedure: Request by letter. Then if unsuccessful, use CPR 23 application)

Answer 25

(1) Reasons to believe that C will be unable to pay D's costs if ordered to do so; (2) C has taken steps to put assets out of reach that would make it difficult to enforce any costs order (e.g., transfer to another or abroad); (3) C is resident abroad; (4) Changed address, failed to give the address, or gave an incorrect address; (5) C has changed address with a view to evading the

Answer 26

(1) Reasons to believe that C will be unable to pay D's costs if ordered to do so; (2) C has taken steps to put assets out of reach that would make it difficult to enforce any costs order (e.g., transfer to another or abroad); (3) C is resident abroad; (4) Changed address, failed to give the address, or gave an incorrect address; (5) C has changed address with a view to evading the consequences of litigation or has failed to give a correct address or any address.

Answer 27

The court retains a wide discretion and must be satisfied that (Sir Lindsay Parkinson v Triplan): (1) Whether it is just and fair in all the circumstances. Olataiwola v Abioye: A poor C means that D is more likely to need security but granting it might effectively affect C's right to access to court or otherwise affect C's right to a fair trial; (2) Whether the respondent's lack of money was brought about by the applicant's conduct; (3) Whether the application is bona fide, not a sham. Has reasonably good prospects for success. Not made to oppress or stifle a genuine claim. (Applying can result in no security being granted); (4) Whether there was a delay in applying, such as the hearing being very close, what the respondent is likely to be able to pay, and what the applicant reasonably expects to recover at trial, Stephenson time, type of security (payment into court, payment to applicant's solicitor, bank guarantee or undertaking to pay), and what happens if security is not given.

Answer 28

Forms of security: Only available pre-action / Not available for Small Claims / It cannot be solely in relation to a costs application by the other party.

Answer 29

The decision of the lower court was either: (1) Wrong (i.e., error of law, of fact, or in the exercise of the court's discretion); or (2) Unjust due to serious procedural/other irregularity.

Answer 30

One of the conditions below must be satisfied: (1) The appeal has a real prospect of success; or (2) There is some other compelling reason for the appeal to be heard (e.g., whether the question is of general principle decided for the first time). The court will also consider the overriding objective.

Answer 31

CPR 31 and PD 31A (Procedure: Make a written request. If unsuccessful, use CPR 23 application)

Answer 32

(1) Inadequacy of the disclosure by disclosing party; (2) Search scope carried out was unreasonably limited; (3) Concerns about the extent to which documents have been redacted.

Answer 33

(1) Must affect or support own or other party's case; (2) Will enable to resolve, save costs of proceedings; (3) Reasonable, proportionate and just to allow it.

Answer 34

If the application is pre-action, then it is an urgent one, and the respondent and applicant are likely to be parties in a proceeding.

Answer 35

CPR 31.17 (Procedure: CPR 23 application)

Answer 36

(1) Likely to support the case of the applicant or adversely affect the case of another parties. Three Rivers v HM Treasury - The threshold condition is lowered by the qualification 'likely to'. It is not necessary that the documents will support; only necessary to show that they are likely to do so. The test is one of probability. Black v Sumitomo - 'likely' has the meaning 'may well' and not as high as 'more probable than not'. American Home v Novartis - The criteria must be satisfied for each of the documents where a party is seeking the disclosure of a class of documents.

Answer 37

(2) Disclosure is necessary in order to dispose fairly of the claim or save costs.

Answer 38

(1) Evidence is not relevant; (2) Should be excluded under CPR 32.1 to deal with case justly and at proportionate cost (overriding objective CPR 1.1); (3) Credibility and reliability (e.g., biased, contradicting, suffering from a physical or mental infirmity or lack of understanding, etc.); (4) Documents are privileged; (5) Opinion evidence provided by witness of facts; (6) Expert lacks expertise, biased, contradicting, not qualified, etc.; (7) One of the exclusionary rules applies.