DR 3 - Statements of case, interim Flashcards
Statements of case
Served between parties and filed at court.
Allows assessment of opponents case.
Consist of claim form, particulars of claim and defence.
If deemed necessary C may reply.
Or C may respond with defence to counterclaim by D.
If party requires more details of another party may file a request and response to request for further information.
Particulars of claim -
Concise statement of acts relied upon.
Interest.
Contract -
Statust or parties -
background info. Terms relying on (and implied terms).
Existence of contract - date, subject matter and consideration.
Copy of written must be attached.
If spoken written in paragraph.
Breach alleged and particularised.
details of which term was breached and how
Particulars of breach -
details of what exactly C alleges D did wrong.
Factual consequences-
continuation of consequences
Damage and loss alleged and particularised-
Loss should be itemised.
Interest -
contract may itself state
If not may be claimed under Late Payment of Commercial Debts (1998) (does not apply to unspecified). 8% per annum above Bank of England base rate. Also a small amount of statutory compensation.
In other cases discretion to award under s35A of senior courts or in High Court s69 of country courts act.
Specified must be precisely calculated as lump sum for amount that has accrued.
Summary of relief -
not a requirements, can put remedies claimed.
Statement of truth -
Defence
Rule 16.5
Each allegation
-denied
-not admitted
-admitted
if deny must state reasons for doing so and own version of events if different from that given by C/
Non-admission means D has no knowledge of particular matter.
Contents of defence
-name of court
-claim number
-partes
-title (DEFENCE)
-date and signature of solicitors in name of firm
-statement of truth
-details of who is to be served and where.
If D alleges expiration period. Must state so. Burden on C.
Counter-claim -
actually suffered loss attributable to C.
Defence and counterclaim
Same document.
DEFENCE AND COUNTERCLAIM.
Sub-divided into two sections.
Best to treat counter as stand-alone claim.
Will refer back to defence to save repeating.
Amendments to statements of case
Before expiry of limitation period -
After filing but before service
Any time
After filing and service
with written consent from parties
or
with permission from the court
*When applying file copy of statement of case with proposed amendments with an application notice.
Court take into account overriding objective of cost and proportionality.
Injustice between parties
After expiry of the limitation period -
Only;
to add or substitute new claim if arising out of substantially same facts
to correct genuine mistake
to alter capacity in which a party claims
Additional claims
Indemnity -
by contract or statute.
Third party may have to indemnify
Contribution - joint-wrong doers and D argues third party partly responsible.
C may reply to defence but doesn’t have to. Only typically on matters they dispute not in particulars.
If C wants to dispute counter-claim. Must file within 14 days, unless extension of 28 days agreed by pendant.
If fail D may enter into judgment on default of counterclaim.
Request for further information
CPR Part 18.
Any time, court or party may request.
If successful will have to;
-clarify any matter that is in dispute
-give additional information in relation to any such matter
Procedure
Write request on other party, allowing reasonable time
Should be concise.
Request must e heated with name of court, title, and identify that it is a Part 18 request.
Requests in numbered paragraphs.
Once received;
Must be in writing, dated and signed by party or solicitor.
Should set out same information and give details of response.
Must be served on all parties, filed with court and verified by statement of truth.
If no reply - Apply to court.
Court will allow if;
matters are reasonable necessary and proportionate to enable applicant to prepare case.
Interim applications
Before applying, seek to resolve matters themselves to comply with the overriding objective and avoid imposition of penalties.
Part 23
Form N244 used.
To court which claim started off or has been transferred.
Content;
State what order and why being sought. Should attach evidence.
Witness statement may also be filed.
Verified by statement of truth.
Evidence in support -
factual information and evidence in support
anticipate opponents case where appropriate.
Draft order-
PD 23A -
expect in most simple attach draft order to help judge.
Service -
at least three clear days before the hearing (bank holidays and weekends excluded).
Consent order -
If reached agreement, apply to court for order without need for attendance at hearing. Must provide material to court it needs to be satisfied.
Orders made without notice -
exceptional urgency
or
overriding objective of CPR would be best achieved by making an order without notice.
If without order -
must serve on respondent as soon as practicable -
the court order
the application notice
any support evidence
Respondent may then set aside or vary order within seven days of service upon them.
Interim costs
General rule - loser pays winner.
If application granted usual for respondent to pay applicant’s costs.
If win payed in 14 days.
Otherwise may be stayed until end of proceedings.
Or draw, each party bears their own cost.
‘Pay as you go’
Summary judgement
When a party makes a weak case (not default)
Rule 24.2 Court may;
it consider that the claimant has no real prospect of succeeding in the claim
or
the defendant has no real prospect of successfully defending the claim
and
there is no other compelling reason why the case should be disposed of at trial.
Compelling reasons -
-need to allow more time to investigate
-claim or defence is of a highly complicated and/or technical nature so would only be fully understood at trial
-need to hear from witnesses.
Procedure of summary judgement
Either party at any time.
Only permission required where C wishes to apply before D filed an acknowledgement of service or defence.
-Applicant applies with form N244 and witness statement in support (usually)
Respondent must
-be given at least 14 days notice of hearing date
-file and serve any written evidence at least seven days before hearing
-if applicant wants further evidence must be filed at least 3 days before hearing.
Possible orders
Judgement on claim - C succeeded, proceed to enforcement
Striking out or dismissal - D succeeded, case comes to end.
Application dismissed -
proceed towards trial
Conditional order -
neither has won.
Where court concludes possible not probable that claim or defence may succeed.
Allowed to proceed if they pay money to court or take specified step.
When case carries on court will make directions.
Cost order on Summary
C succeeds for specified -
fixed costs, C may request higher or ask for summary
C awarded in unspecified -
winner is granted costs. Summarily assessed at further hearing
D secures judgement - C pays D’s costs subject to summary assessment.
Application dismissed - proceedings continue and unsuccessful party pay successful costs at summary judgement hearing.
Conditional order
Interim injunctions
P25 CPR.
Either party may apply.
At any time (exceptional cases before proceedings).
Must be satisfied - urgent
or otherwise desirable in the interests of justice.
Breach of injunction punishable by contempt of court.
Aim to maintain status quo.
When looking at granting;
serious question to be tried
damages are adequate for either side
balance of convenience lies in favour of granting or refusing the injunction
whether there are any special factors.
Cross-undertaking
If granted applicant must undertake to court to pay any damages that respondent (or any other party affected) sustains by reason of the injunction.
Procedure
Application notice with evidence in support.
Without notice -
good reason for doing so.
Takes one of two forms (without notice);
court may fix date for further hearing with all parties present, last until date of that hearing.
or may tell D that they may apply on notice for order to be varied or set aside. Injunction will remain until then
