Concluding Matters Without Trial and other Interim Applications

Question 1

What is a default judgment, when can it be obtained?

Answer 1

A default judgment is made without trial. A claimant can obtain this if a defendant fails to return documents or file a defence under CPR Part 12

Question 2

What steps does a claimant take to obtain a default judgment?

Answer 2

Complete a form requesting the money owed. The court will then grant provided PoC were served and def failed to respond in time period

Question 3

What will happen when a claimant requests default judgment be in cases with a specified amount ?

Answer 3

A final judgment will be given for immediate payment within 14 days, plus additional fixed costs under CPR Part 45

Question 4

What will happen when a claimant requests default judgment be in cases with a unspecified amount ?

Answer 4

Further directions will be given by the Court to decide the amount of claim and costs

Question 5

How may a defendant respond to a default judgment?

Answer 5

They can instruct solicitors to disclose a defence and see if the judgment can be set aside under CPR Part 13.

Question 6

On which two grounds may a defendant apply for a default judgment to be set aside under CPR Part 13?

Answer 6

The mandatory ground or the discretionary ground

Question 7

What is the mandatory ground a defendant may rely upon to set aside a default judgment and what will the court do?

Answer 7

If a judgment has been entered into wrongly, i.e. too early or the claim has already been paid in full, then the court must set the judgment aside and directions will be given for future conducts of the case.

Question 8

What are the two discretionary grounds a defendant may rely upon to set aside a default judgment?

Answer 8

If the defendant has a real prospect of successfully defending a claim or there is good reason for a defendant to be allowed to defend a claim - witness statement in support will usually be required to satisfy this (a good reason would be if they were ill or hospitalised but not if they were under pressure at work or lost the documents etc.)

Question 9

What is a summary judgment and under what Part of CPR is it applied for?

Answer 9

It prevents unnecessary trial and time wasting, under CPR Part 24. An Application Notice can be filed by either party (with supporting evidence).

Question 10

Why might a claimant apply for a summary judgement?

Answer 10

If the filed defence isn’t good enough to answer the claim effectively (a possible delay tactic)

Question 11

Why might a defendant apply for a summary judgement?

Answer 11

If a claimant’s case is unsubstantial

Question 12

For what three reasons would a court award a summary judgment to prevent unnecessary trial under CPR Part 24?

Answer 12

The claimant has no real prospect of succeeding / the defendant has no real prospect of successfully defending the claim / there is no compelling reason to proceed to trial (a compelling reason could be a need to investigate further or need to hear from witnesses)

Question 13

How should a summary judgment be applied for and what are the deadlines for evidence and responses?

Answer 13

An application notice should be served with supporting evidence at least 14 days before the hearing and the respondent’s evidence should be served 7 days before the hearing. If a party wishes to rely on written evidence in reply this must be served 3 days before the hearing.

Question 14

What happens if a claimant’s Part 24 application is granted?

Answer 14

The judgment is awarded and the case ends (except for enforcement matters)

Question 15

What happens if a claimant’s Part 24 application is dismissed?

Answer 15

The claimant has failed to bring the matter to an early conclusion and the litigation proceeds.

Question 16

What happens if a conditional order is granted in a claimant’s Part 24 application?

Answer 16

The defendant is allowed to defend the claim provided they pay the full claim amount to the court within a given limit (usually 28 days) to prove they aren’t just trying to delay payment. If they don’t meet this condition, the judgment will stand

Question 17

What could happen if a defendant is the applicant of a Part 24 application?

Answer 17

The claim may be struck out or dismissed

Question 18

What happens if a claimant claiming an unspecified sum is awarded a summary judgment?

Answer 18

A hearing will follow to decide damages and determine costs

Question 19

Give five examples of when an interim application may be made?

Answer 19

A party is unable to comply with a direction / relief from sanction / impose sanction on opponent missing a deadline / force opponent to respond to Part 18 request / procedural matters (e.g. amend a name)

Question 20

What must parties do before making interim applications, and under what Part of CPR are the applications made?

Answer 20

They must try to resolve matters before applying to court or face costs sanctions. If attempts to resolve fail, they then apply to the court under Part 23

Question 21

What is the general procedure for interim applications made under CPR Part 23?

Answer 21

Form N24, draft order and witness statement will be drafted by someone with personal knowledge (solicitor, client etc.) which will include relevant information and evidence to rely on as well as attaching any supporting documents. These are then served - on notice 3 days before hearing, without notice within 7 days of the order being granted

Question 22

When would a court grant an order for an application to be made without notice?

Answer 22

They may make an order if there is exceptional urgency or doing so would be best to achieve the overriding objective (e.g. if applicant wishes to freeze opponent’s financial assets, notice would defeat the application)

Question 23

How long does a respondent have to apply for a without notice application to be set aside or varied from date of servie?

Answer 23

7 days

Question 24

What 5 things must be included in a N244 for an application with notice?

Answer 24

Title of claim / reference no / full name of applicant / the order being sought with draft attached / evidence as to why the order is being sought (can be WS)

Question 25

How is N244 application with notice filed?

Answer 25

The Notice is filed at court with the court fee and served on the opposition no less than 3 business days prior to the hearing.

Question 26

Where should an applicant apply for an application with notice?

Answer 26

The court the claim is at (or likely to be if not assigned) or if it is a designated money claim with the CCMCC then it can be made at any CC hearing centre

Question 27

Give an example of a reason why the application may be dealt with without the parties attending court?

Answer 27

If the parties have agreed an order. This saves costs.

Question 28

Which two ways can evidence in support of an application be given?

Answer 28

Using the application notice and signing the statement of truth or a separate witness statement by a witness best placed to address the issues from personal knowledge (i.e. solicitor, client, employee)

Question 29

What are interim payments?

Answer 29

Advance payments made in respect of likely compensation to avoid a claimant facing hardship while waiting for judgment to be made

Question 30

How should an application for interim payment be made?

Answer 30

They must be made on notice 14 days prior to the hearing, evidence should be given including how much is requested and why, likely damages, reasons to believe a relevant ground has been satisfied. Supporting documents should be exhibited

Question 31

What is the timeframe for a respondent to an interim payment application to respond with a witness statement?

Answer 31

WS should be filed and served 7 days before the hearing. The applicant can respond up to 3 days before the hearing with further evidence.

Question 32

What are the two grounds for obtaining interim payment under Part 25

Answer 32

Liability is decided (either by the court or the defendant admitting) or the court feels the claimant’s case is strong enough

Question 33

How are costs decided in interim applications decided?

Answer 33

On a summary assessment. The court decides at the end of the hearing how much the costs are and who will pay. The costs must then be paid within 14 days unless ordered otherwise. -note: if costs are fixed under P45 then no assessment needed

Question 34

What is a Part 36 offer?

Answer 34

A tactical tool used to pressure the opposition to settle, as penalties create a dilemma of whether or not to accept

Question 35

How is a Part 36 offer made?

Answer 35

Must be in writing clearly stating it is in pursuant of Part 36, giving a period of 21 days where the def will be liable for the claimant’s costs if accepted and must state whether it is in relation to all or part of the claim and if any counterclaim has been taken into account

Question 36

What happens if a Part 36 offer states that it is withdrawn on a certain date?

Answer 36

The advantages of Part 36 are lost.

Question 37

How is a Part 36 offer accepted?

Answer 37

Service of a written notice accepting the offer to the court and the party offering within 21 days.

Question 38

What happens when a Part 36 offer is accepted?

Answer 38

The def must pay the sum in the offer plus claimant’s reasonable costs incurred up to the service of the def’s acceptance. If costs are not agreed the court will decide them. The claim is then over.

Question 39

What happens when a Part 36 offer is not accepted?

Answer 39

The case will continue but the offer can still have a significant effect on the case because penalties are imposed on the party who got it wrong, as they have inconvenienced the court and other party and incurred extra costs. Additional penalties will apply after the 21 acceptance days expire and if a claimant beats their offer they will be awarded costs on an indemnity basis, making it high risk for a defendant to reject.

Question 40

When can a Part 36 offer be accepted late?

Answer 40

If the parties agree liability for costs or if the court gives permission

Question 41

What three penalties are given to a defendant if a claimant wins at trial, and equals or betters their Part 36 offer?

Answer 41

A percentage of the awarded damages, 10% up to £500k and for £500k-£1m, 10% up to £500k then 5% on the amount above. Cannot exceed £75k. / After day 22 interest on damages up to 10% above BofE base / claimant’s costs (on indemnity basis after day 22) and interest on them after day 22 max 10% above base rate but usually 4%

Question 42

What happens if a claimant wins at trial but is awarded less than their Part 36 offer?

Answer 42

As the def was right to reject the offer, they are not penalised under Part 36 and usual orders will apply for the def to pay damages awarded, interest from PoC and costs on a standard basis

Question 43

What happens if a claimant loses at trial after def rejects their Part 36 offer?

Answer 43

The claimant receives no damages and will have to pay the defendant’s costs on a standard basis as well as their own.

Question 44

What happens if a claimant wins at trial and beats the def’s Part 36 offer?

Answer 44

Claimant was right to reject so suffers no penalties. Defendant pays damages and costs

Question 45

What happens if a claimant wins at trial but doesn’t beat the def’s Part 36 offer?

Answer 45

The claimant is penalised for wasting time and costs so they are still awarded their damages and interest as usual but will face costs penalties.

Question 46

What are the costs penalties a claimant faces if they win at trial but don’t beat the def’s Part 36 offer?

Answer 46

The defendant only pays the claimant’s costs up to the expiry of the 21 day period rather than for the entire proceedings / The claimant must pay the defendant’s costs from day 22 (as well as their own) on a standard basis plus interest on the def’s costs from day 22 to date of judgment (“split costs order”)

Question 47

What happens if a claimant loses at trial after rejecting the def’s Part 36 offer?

Answer 47

The claimant receives no damages and must pay the def’s costs on a standard basis up to the date of judgment, plus interest on costs after day 22, usually at 1-2% above base rate

Question 48

What is deduction of benefits?

Answer 48

If a claimant succeeds in a p.i case receiving compensation, the Compensation Recovery Unit of DWP will recover qualifying benefits the claimant might have received due to their injury to stop them being compensated twice.

Question 49

What is the process for deduction of benefits to be obtained by the Compensation Recovery Unit?

Answer 49

Def must inform CRU of judgment and the CRU issues certificate stating the amount they are claiming and then the def will pay them

Question 50

What must a defendant do if they are making a Part 36 offer in a p.i case regarding deduction of benefits?

Answer 50

They must state the gross compensation, name and amount of any benefit reducing that amount and then the net amount after that reduction.