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SQE2 Revision - Megan's Flashcards > DR 10 > Flashcards

DR 10 Flashcards

1
Q

What is an interim application?

A

Any application made to the court which requires a judicial decision. They are usually pre-trial requests for a court order.Examples:* Unless orders* Orders to set aside default judgments* Summary judgements * Application to strike out a claim* Application for interim payment* Interim injunction (e.g. Freezing injunction or Search order)

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2
Q

What is the risk when submitting an application which does not consider the aims of the overriding objective?

A

The court may made an adverse costs order

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3
Q

How soon should an interim application be made?

A

As soon as it is apparent that it is necessary or desirable

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4
Q

What is true of an interim application if there is already another hearing listed in the matter?

A

It should be raised at that hearing, if possible

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5
Q

Unless there is good reason why notice should not be required, what notice of an interim application must be given to parties (1) generally, and (2) if over the telephone?

A
  1. Three days5. Five days
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6
Q

What should be true of evidence relied on in support of an interim injunction?

A

It should be in writing and filed at court within the relevant time limit along with the notice

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7
Q

For time limit purposes, when is the application treated as having been made?

A

On the date on which the application notice and fee are received by the court

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8
Q

What two things does the applicant have to file and serve within 2 days of the hearing on the interim application?

A
  1. Case summary2. Proposed draft order
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9
Q

When might it be appropriate to not give notice of an interim application?

A

When giving notice may defeat the purpose of an application, or create an injustice (e.g. if it gives the other party an opportunity to dispose of evidence or assets)

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10
Q

Other than what two types of orders would it be extremely unusual to not give notice of an interim application?

A
  1. Freezing injunction2. Search order
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11
Q

Where an interim application is made without notice, what must it include?

A

Evidence explaining why notice was not given

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12
Q

What three things must be served on the non-applicant party if an order is granted based on a without-notice application?

A
  1. The order2. Application notice3. Supporting evidence
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13
Q

If an order is granted based on a without-notice application, within what time limit of being served must the non-applicant party apply to vary or set aside the order?

A

7 days

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14
Q

If a party makes an interim application without notice erroneously, what type of order will the court dismiss it with, and what is the effect of this?

A

A wasted costs order, which requires the solicitor to pay the other side’s costs to the extent they are associated with the application

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15
Q

What is a order for summary judgment?

A

An interim order where the court enters judgment for the applicant without proceding to trial. An application will usually be supported by written evidence to support the application

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16
Q

When can an application for an order for summary judgment be made?

A
  • After the defendant has received the particulars of claim and has served an acknowledgment of service or defence * If the claimant applies before the defendant files a defence, the defendant need not file a defence until after the summary judgment hearing (although the defendant may want to append a defence to a witness statement opposing the application to help defeat the application)
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17
Q

What are the two criteria which the applicant must show if applying for summary judgment?

A
  1. Other party has no reasonable prospect of success, and2. No other compelling reason why the case should proceed
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18
Q

What is the different between default judgment and summary judgment?

A

Default judgment: Defendant has failed to acknowledge service or file a defence on time, not related to strength of caseSummary judgment: Other party has weak case and there’s no other reason to have the trial (can be applied for by either party)

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19
Q

What is the different between an application to strike and summary judgment?

A
  • Application to strike: goes to procedure* Summary judgment: goes to meritsNote, an application for summary judgement can be combined with a motion to strike a claim
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20
Q

What are three things for which the court will grant an application to strike?

A
  1. Statement of case discloses no reason grounds for bringing/defending claim2. Statement of case is an abuse of court process3. Failure to comply with a rule, practice direction, or order
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21
Q

What one thing must the claimant do and what one thing must the defendant do before an application for summary judgment is available to the defendant?

A

Claimant must serve the Particulars of Claim and defendant must serve acknowledgement or defence

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22
Q

What is the defendant excused from doing if the claimant applies for summary judgment following the acknowledgement of the claim

A

Defendant does not have to file a defence before the hearing on the application

23
Q

In an application for summary judgment, what are the three time periods before the hearing before which:(1) Applicant must serve written evidence in support of the application on the other party(2) Other party must serve evidence in response, and(3) Applicant must serve any further evidence in response to (2)?

A
  1. 14 days2. 7 days3. 3 days
24
Q

What is an interim payment application?

A

An application for the court to order some payment before the court has given a final determination on the claim.Interim payments are always discretionary

25
Q

What are the three grounds for an order of interim payment to be made?

A
  1. Defendant has admitted liability2. Claimant has obtained judgment but the sum to be paid is not yet assessed3. The court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum (and in cases with multiple defendants, from at least one of them and each carries insurance)
26
Q

Before making an application for interim payment, what should the applicant do?

A

Request that the defendant make a payment voluntarily

27
Q

What must expire before claimant can apply for an interim payment?

A

The time for filing acknowledgement of service

28
Q

In an application for interim payment, what are the three time periods before the hearing before which:(1) Claimant must serve written evidence in support of the application on the defendant(2) Defendant must serve evidence in response, and(3) Claimant must serve any further evidence in response to (2)?

A
  1. 14 days2. 7 days3. 3 days
29
Q

In an application for interim payment, what three things must the claimant’s written evidence contain?

A
  1. Sum of money sought2. Items and matters in respect of which payment is sought3. An estimate of the final judgment
30
Q

In an application for interim payment in a personal injury context, what additional thing must be attached to the estimate of final judgment and what one additional thing is required in the claimant’s written evidence?

A

Estimate of final judgment must contain medical reports.Additional element is a schedule of loss with details of past and future loss and damage.

31
Q

Does the claimant need to show a specific need for the money in order for an application for interim payment to be successful?

A

No

32
Q

Whilst the courts will not award an interim payment that is more than a reasonable proportion of the likely final judgment, what % amount has been held to be acceptable?

A

75%

33
Q

In considering an application for interim payment, will the court consider contributory negligence, set off, counterclaims?

A

Yes

34
Q

What is an injunction?

A

A court order than requires a party to do (mandatory injunction) or stop doing something (prohibitory injunction).

35
Q

When is an injunction considered interim, and when is it considered final?

A

Interim: if made before trialFinal: at trial

36
Q

How are injunctions enforced and what are the possible penalties of breaching an injunction?

A

Contempt proceedings and usually include a penal notice so that contempt may be imposed without first seeking an unless order Penalties* A party may be imprisoned for up to two years if found to be in contempt * A party’s assets may be removed (sequestered) if found to be in contempt

37
Q

If an interim injunction is granted based on a without-notice application, what is the affected party entitled to?

A
  • Notice of the order before they can be penalised for not following it* Another hearing will be set within a few days of the first hearing (the ‘return date’) to give the enjoined party an opportunity to explain why it should not have been granted
38
Q

Can an injunction be applied for before proceedings commence?

A

Yes

39
Q

How quickly can an injunction be obtained?

A

48 hours, may be applied for by telephone

40
Q

What are the two types of injunctions, and what do they require?

A

Mandatory injunction requires someone to take actionProhibitory injunction prevents someone from taking action

41
Q

In the context of an injunction application, what is an undertaking in damages?

A

An undertaking by the person making the application that they will compensate the other party for any loss suffered if the court later determines that the injunction should not have been granted

42
Q

How can a party apply to have the injunction discharged?

A

By applying on notice to a judge of the division where the claim is proceeding

43
Q

What are the six grounds that can be argued in support of an application to discharge an injunction?

A
  1. Material non-disclosure (applicant did not provide all relevant information in applying for the injunction2. Failure of the applicant to comply with the terms on which the injunction was granted3. Facts do not justify interim injunctive relief4. Injunction is oppressive5. Material change in the circumstances of the parties or the law since the injunction, and/or6. Claimant has failed to prosecute the claim with due speed since obtaining the injunction
44
Q

What is a freezing injunction?

A

A type of prohibitory injunction designed to freeze the assets of the defendant

45
Q

To whom must an application for a freezing injunction be made?

A

A High Court judge

46
Q

What are the four requirements of which a court must be satisfied before granting a freezing injunction?

A
  1. Justifiable cause of action2. Claimant has good arguable case3. Defendant has assets within the jurisdiction4. Real risk the defendant may dispose of or dissipate those assets before judgment can be enforced
47
Q

What will usually be required of the party seeking a freezing injunction?

A

An undertaking to pay damages if the injunction was improvidently granted and also to notify the enjoined party and third parties, such as banks, of a right to seek a variation from the order.

48
Q

What two things must be true of a freezing injunction?

A
  1. The assets frozen should not exceed the maximum amount of the claim, and2. The order must state the period of time it will be in effect
49
Q

When will a freezing injunction bind third parties?

A

When they have knowledge of it

50
Q

How can an enjoined party seek discharge of a freezing injunction?

A
  • Offering security for the claimant’s claim or* Showing the injunction was obtained on the basis of material non-disclosure
51
Q

What is a search order?

A

A last resort order applied for without notice by the applicant if it is clear the defendant will not obey the rules relating to disclosure, or may seek to destroy evidence, which allows the claimant to search for and potentially seize this evidenceIt can only be obtained in the High Court

52
Q

What are the three requirements of which a court must be satisfied before granting a search order?

A
  1. Strong prima facie case on the merits of the underlying claim2. Defendant’s activities cause very serious potential or actual harm to the claimant’s interest, and3. Clear evidence that the property and documents are in the defendant’s possession and there is a real possibility the material may be destroyed
53
Q

What three things will the independent supervising solicitor who oversees execution of a search order undertake to do?

A
  1. Offer to explain the meaning and effect of the order to the defendant2. Inform the defendant of their right to seek legal advice and right to apply to vary or discharge the order, and3. Prepare a written report on execution and provide it to the claimant’s solicitor and the court
54
Q

In the context of a search order, what three things will the claimant’s solicitor undertake to do?

A
  1. Give an undertaking to return original documents to the defendant within two days2. Deliver property in dispute to defendant’s solicitors, and3. Retain all other property securely until the court directs otherwise

SQE2 Revision - Megan's Flashcards (80 decks)

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