Consolidate MCQ 4 Flashcards
For a summary judgment application, what is the latest date by which the applicant must serve the application documentation on the respondent if the hearing is to take place on Friday 22 October?
A. Thursday 14 October
B. Friday 8 October
C. Friday 15 October
D. Thursday 7 October
E. Monday 18 October
D. Thursday 7 October
the applicant must give at least 14 days’ notice of the date fixed for the hearing (CPR 24.4(3))
A wealthy supermarket chain wants to obtain an interim injunction against a car dealer possessing the neighbouring land to prevent the car dealer from parking cars on what the supermarket considers to be its own land. The claim has a 60% chance of success. If the car dealer goes ahead with this parking, the supermarket will suffer losses of approximately £400 for each day of infringement, being the cost of the supermarket renting the required space from a different neighbouring property instead. The car dealer has substantial assets and available cash. Which of the following best explains why an application for an interim injunction is likely to fail?
A. The parking complained of has not taken place yet.
B. Damages will be an adequate remedy for the supermarket if the claim succeeds.
C. The supermarket will be unable to show the court that it will be able to honour the undertakings that are likely to be required of it.
D. The defendant has sufficient assets to pay the costs of opposing the application.
E. The claim does not have sufficient prospects of success.
B. Damages will be an adequate remedy for the supermarket if the claim succeeds.
The approach the court takes to determining whether to grant an interim injunction stems from the case of American Cyanamid Co v Ethicon Ltd [1975] AC 396 and in overview is: Step 1 - Is there a serious question to be tried? If not, an interim injunction is unlikely to be granted. But in this case, the claim has 60% prospects of success, so there is clearly a serious question to be tried, and it would be wrong to say that this claim does not have sufficient prospects of success. Step 2 - Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction? An injunction is unlikely to be granted unless damages would be inadequate for the applicant. In this case, there is nothing to suggest damages would be inadequate, and this is why an interim injunction is unlikely to be obtained. Examples of situations where damages would be inadequate are where the harm is irreparable or impossible to calculate – not the case here. If damages were to be inadequate for the applicant, you would consider the situation from the respondent’s point of view – is it possible to compensate the respondent if it turns out that an injunction should not have been granted (and could the applicant honour an undertaking to that effect)? This should be possible here from the facts we are given – the applicant appears to have sufficient money to honour an undertaking to pay the respondent damages and so it would be wrong to say that the supermarket will be unable to show the court that it will be able to honour the undertakings that are likely to be required of it. Step 3 - Where does the balance of convenience lie? Given the conclusions reached in relation to Step 2, this step is not very relevant. The other answers are wrong because interim prohibitory injunctions are ideal where the behaviour complained of has not yet taken place and because the respondent having sufficient assets to pay the costs of opposing the application does not that mean that it has good grounds to oppose it.
An applicant makes an application for security for costs with a return date of Friday 22 October. What is the latest date that the applicant might be permitted to serve a copy of the application notice and supporting documentation on the respondent (without further order from the court)?
A. Tuesday, 19 October
B. Monday, 18 October.
C. Friday, 15 October
D. As soon as possible before the hearing
E. Thursday, 21 October
.
B. Monday, 18 October.
if an applicant makes a with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as possible but not less than 3 clear days before the hearing (CPR 23.7). The other options were not correct: * As soon as possible before the hearing – this is only part of the rule on the service time limit in this situation (CPR 23.7). * Tuesday, 19 October. This is not 3 ‘clear’ days before the hearing. * Friday, 15 October. This is not the correct time limit for standard with notice interim applications (CPR 23.7). * Thursday, 21 October (you could be confusing the application notice and evidence with the statement of costs, which can be served 24 hours before the hearing).
A defendant makes an application for security for costs against the claimant two weeks before the trial of the claim. The claimant opposes the application.
The claimant company is based overseas in the USA with no assets or operations elsewhere. It has been financially solvent for many years holding both liquid and illiquid assets (as publicly available accounts across the years have shown), and has a strong claim against the defendant.
What is the most accurate description of the likely outcome of the defendant’s security for costs application?
A. The defendant is likely to be unsuccessful in its application because of its delay in making the application.
B. The defendant is likely to be successful in its application because the claimant is resident out of the jurisdiction (but is not resident in a state bound by the Hague Convention 2005).
C. The defendant is likely to be unsuccessful in its application because there is no reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so.
D. The defendant is likely to be successful in its application because it is not using the application to stifle the claimant’s claim.
E. The defendant is likely to be successful in its application because the claimant has the ability to comply with any order made for security for costs.
A. The defendant is likely to be unsuccessful in its application because of its delay in making the application.
Correct. Although the defendant will likely be able to establish that one of the prescribed conditions for security for costs exists (CPR 25.13(2)(a)) and that the claimant has the ability (eg funds) to pay into court or to give a guarantee, the court is likely to refuse the application due to the application of the further discretionary factors . The defendant has left it until just two weeks before the trial to make the application when the facts justifying the order have been known from the outset ie that the claimant is out of the jurisdiction and in a location where enforceability of the costs order will be difficult, and that it has the funds to pay security. An application for security for costs should be made promptly and as soon as facts justifying the order are known and the court is likely to refuse to exercise its discretion to make the order on the basis that there has been a significant delay in making the application.
A claimant has commenced proceedings seeking in the region of £200,000 in relation to personal injuries. A defence has been filed defending the claim in full. It is clear that the claimant will be awarded at least £50,000 in relation to the injuries at trial, but the prospects of recovering more than this are unclear. The claimant needs to make adaptations to their house to cope with their injuries, but does not have the money to do so. Does an application for an interim payment by the claimant have good prospects of success?
A. No, because the defendant has not admitted liability.
B. No, because the prospects of recovering the majority of the claim are uncertain.
C. Yes, because if the claim went to trial the claimant would obtain judgment for a substantial amount of money.
D. Yes, because the claimant does not have any money to make the necessary adaptations.
E. No, because the claimant has not obtained judgment against the defendant.
C. Yes, because if the claim went to trial the claimant would obtain judgment for a substantial amount of money.
. CPR 25.7(1) provides that a condition giving the court jurisdiction to award an interim payment is that 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 the defendant”, and this is clearly satisfied if ‘it is clear that the claimant will be awarded at least £50,000’ at trial. An admission of liability or having already obtained judgment are alternative conditions, but they are not necessary ones, so the absence of these does not prevent an application for an interim payment. It does not matter that the very good prospects only relate to 25% of the sum claimed, as long as this is still a substantial amount (but note that the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment – CPR 25.7(4)). The fact that the claimant does not have any money to make the necessary adaptations is not the main factor giving the application good prospects of success.
