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Ella SQE > DR 8 - Interim applications* > Flashcards

DR 8 - Interim applications* Flashcards

1
Q

General: What are interim applications?

A

applications for orders or directions made to the court, usually in the interim period between the claim and commencement of proceedings.

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2
Q

Who can interim applications be made by?

A

Any party

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3
Q

General: When should an interim application be made?

A

As soon as it becomes apparent that it is necessary or desirable to make an application.

Parties are under an obligation to ‘bunch’ their applications (i.e. try to deal with all at a single hearing)

NB: these relate to the overriding objective

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4
Q

4 general stages of interim applications

A
  1. Issue
  2. Service
  3. Further evidence
  4. Hearing
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5
Q

General: How does the interim application process start?

A

the applicant files an application notice (Form N244) at court which states:

  • Who is making the application 👀
  • What the applicant wants 🎁
  • Why the applicant is applying for the order 🤷‍♀️
  • What information the applicant relies on in support of the application. 📑
  • draft order 📝
  • court fee 💰
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6
Q

General: Who is an interim application made to?

A

The court in which the main case is being heard/likely to be heard.

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7
Q

Must evidence always be provided?

A

For particular types of application, yes.

Even where not strictly required, advisable.

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8
Q

3 ways in which evidence can be given

A
  1. In the application notice itself
  2. By referring to the existing statements of case
  3. In a witness statement (or, if required, affidavit).
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9
Q

General: What happens after an interim application is made?

A

Service is made on the respondent including:
- Application notice
- Supporting evidence
- Draft Order
- Notice of hearing date 👂📆

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10
Q

General: What happens after the court issues the interim application?

A

The application must be served on the other party by either the court OR the applicant.

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11
Q

General: When must the application be served?

A

Service must be effected as soon as practicable after the application and not less than 3 clear days before the application is to be heard.

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12
Q

General: Once an application is served, what does the respondent do and when?

A
  • they may wish to file evidence in the form of a witness statement
  • as soon as possible (& in accordance with any specific timings stated by court)
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13
Q

General: Can the applicant respond to the respondent’s evidence? If so, when?

A
  • Yes, the applicant can bring further evidence.
  • as soon as possible (& in accordance with any specific timings stated by court)
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14
Q

General: When should a statement of costs in relation to an application be made?

A
  • not less than 24 hours before the hearing.
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15
Q

How are most interim application dealt with?

A

At a hearing

NB: in accordance with the overriding objective, the court may order that a hearing should take place by telephone (if short) or even by video call

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16
Q

General: When can an interim application be dealt with in the absence of a hearing?

A
  • The parties have agreed the terms of the order (should send in ‘consent order’)
  • The parties agree that there should be no hearing
  • The court does not consider a hearing appropriate
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17
Q

General: What happens after the hearing for an interim application?

A

The court will make its decision and the order will be drawn up, sealed and served by the court.

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18
Q

What is an application without notice?

A

Application without serving the application notice on the respondent

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19
Q

Without Notice: When can a ‘without notice’ application for an interim order be made? Name 6

A
  1. there is exceptional urgency 🚨
  2. the overriding objective is best furthered by doing so. 🤫
  3. all parties consent 🤝
  4. the court gives permission 👨‍⚖️
  5. a court order, rule or practice direction permits, or 🇬🇧
  6. a date for the hearing has been fixed, a party wishes to make an application at that hearing, and the party does not have sufficient time to serve an application notice.
    - The party should still inform the other party and court as soon as is possible. 🕰️
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20
Q

Without Notice: What are the 4 safeguards for without notice hearings?

A
  1. the applicant must explain why no notice is given. 🤷‍♀️🤫
    • the applicant must provide evidence in support of the respondent’s position. 📑
  3. the applicant must serve the respondent as soon as possible 📮after the hearing whether or not the court has granted the relief sought including:-
    a) the application notice 📝
    b) the evidence in support 📑
    c) the order 👨‍⚖️
  4. the court order must contain a statement of the respondent’s right to make an application to set aside or vary the order. 🫵
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21
Q

Without Notice: When must the respondent in a without notice interim application make an application to set aside or vary an order made?

A

within 7 days of the order being served on the other party

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22
Q

Purpose of summary judgments

A

to enable the court to dispose of claims or issues without the need for a full trial.

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23
Q

If summary judgment is granted on an issue, what happens to that issue?

A

No longer considered at trial (saves costs)

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24
Q

Difference between summary judgment and strike out

A

The court can strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim, or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (there are also other grounds for strike out).

The court may give summary judgment against C or D where that party has no real prospect of succeeding on their claim or defence.

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25
Q

Difference between summary judgment and default judgment

A

Judgment in default can be the consequence of D failing to respond to a claim (thus procedural)

Court does NOT consider merits of the case when ordering judgment in default

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26
Q

Summary Judgement: Who can apply for a summary judgement?

A

Either party

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27
Q

Summary Judgement: In what circumstance can the court give a summary judgement?

A
  • no real prospect of success (i.e. fanciful, imaginary or false) 🚮
    AND
  • no other compelling reason why should go to trial 🤷‍♀️
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28
Q

To defeat the summary judgment application, what does the respondent need to show?

A

Does not have to show that its case will probably succeed;
just some chance even if it is improbable

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29
Q

Summary Judgement: What must be included in an application for summary judgement?

A
  • the evidence supporting the application 📑
  • any point of law/provision in a document on which the claimant relies👇
    AND
  • state that the respondent has no real prospect of success 🚮

AND

  • knows no compelling reason why the claim / issue should proceed to trial 🤷‍♀️.
30
Q

Summary Judgement: Who can apply for summary judgement and when?

A

Claimant - after D has served an acknowledgement of service or defence (or earlier with court’s permission).

Defendant - any time after proceedings have commenced.

Court - can fix a hearing on its own initiative.

31
Q

Summary Judgement: What is the effect of a summary judgement application on timings?

A

effectively pauses the proceedings

  • if C applies before D has served a defence, the time for D to file a defence is extended until after the hearing.
  • if D applies, D does not have to file either an acknowledgement of service or a defence until after the summary judgement hearing.
32
Q

What is the process for summary hearings

A
  • Service must be at least 14 days before the hearing.
  • The Respondent must file at court and service on the applicant their evidence at least 7 days before the hearing.
  • The applicant must file at court and serve on the respondent their evidence in reply at least 3 days before the hearing.
  • Both parties must file and exchange a statement of costs 24 hours before the hearing.
33
Q

Summary Judgement: What must the application for a summary judgement include?

A
  1. a statement that it is an application for summary judgement; and
  2. direct the respondent’s attention to the CPR which requires the respondent to file and serve any evidence at least 7 days before the summary judgement hearing.
34
Q

Summary Judgement: What orders can be made following a summary judgement application?

A
  • Dismissal of the application - continue to trial
  • Conditional order - respondent may win, but unlikely, court allows case to continue subject to conditions ordered by the court such as paying in a sum of money to court.
  • Dismissal of the original claim - If D applies & succeeds then claim is dismissed and D has won.
  • Judgement on the original claim - if C applies & succeeds then judgement is entered for C and he has won.
35
Q

Interim Payment: What is an interim payment?

A

a payment on account of damages, debt or other sum (except costs) which a defendant may be held liable to pay to a claimant.

36
Q

Who is an application for interim payments made by?

A

Claimant

37
Q

Interim Payment: What are the 3 conditions for an order of interim payments to be made?

A
  1. D has admitted liability to pay damages.
  2. C has obtained a judgement against D for damages to be assessed.
  3. It is satisfied that, if the claim went to trial, C would obtain judgement for a substantial amount of money against D, whether or not D is the only D.
38
Q

Interim Payment: What evidence is required in an application for an interim payment? Name 7

A
  1. the reasons why the conditions for making an interim payment are satisfied. 🤷‍♀️
  2. The sum of money for which final judgement will be given,🎁
  3. The sum of money sought by way of an interim payment,💰
  4. The items or matters in respect of which the interim payment is sought,📝
  5. Any document in support of the claim.📑
  6. Any other relevant matters
39
Q

Interim Payment: What additional evidence is required for an interim payment relating to PI?

A
  • details of the special damages and past and future loss, and
  • in fatal accidents, details of the person(s) on whose behalf the claim is made and the nature of the claim.
  • Any documents in support of the claim including medical reports.
40
Q

Interim Payment: What is the procedure for an interim payment?

A
  • C should request voluntary payment first - can do this at any time.
    🤗

Same rules as for summary judgements apply.

  • Service must be at least 14 days before the hearing.
  • The Respondent must file at court and service on the applicant their evidence at least 7 days before the hearing.
  • The applicant must file at court and serve on the respondent their evidence in reply at least 3 days before the hearing.
  • Both parties must file and exchange a statement of costs 24 hours before the hearing.
41
Q

Interim Payment: When is the earliest that the claimant can apply to the court for an interim payment?

A

The end of the period for the defendant filing an acknowledgement of service.

42
Q

Interim Payment: Can the claimant make more than one application for an interim payment order?

A

Yes

43
Q

Interim Payment: Will an interim payment be disclosed to the trial judge

A

No, not until all questions of questions and quantum of liability have been decided.

UNLESS D agrees.

44
Q

Interim Payment: How much will an interim payment order be for?

A

No more that a reasonable proportion of the likely amount of the final judgement, taking into account any contributory negligence, set off or counterclaim.

NB: could be in instalments.

45
Q

Security of Costs: What is the purpose of security for costs?

A

an application made by the DEFENDANT who is concerned that the claimant will not be willing / able to pay the defendant’s costs.

46
Q

Common example of what the court orders in relation to security for costs

A

A payment into court by C, so that those funds are available to meet any costs order later made in D’s favour

47
Q

What does security for costs relate to?

A

the costs of the claim, NOT the level of damages which may be awarded

48
Q

Security of Costs: Who can make an application for security for costs?

A
  • D against C
  • C against D in respect of a counterclaim

-A 3rd party against D in respect of a Part 20 additional claim

49
Q

Security of Costs: What are the 2 grounds for security of costs?

A
  1. One or more of the prescribed conditions in the rules are satisfied. ⛔️
    AND
  2. Having regard to all of the circumstances of the case, it is just to make an order ⚖️
50
Q

Security of Costs: What else will the court consider (4 factors)?

Lindsay Parkinson v Triplan

A
  1. Admission of liability by D
  2. Delay will make less likely to succeed.
  3. Claim appears not to be genuine claim or has little prospect of success
  4. If D has been responsible for C’s financial difficulties
    will make D’s claim for security more likely to succeed.
51
Q

Security of Costs: What are the 6 prescribed conditions for security of costs?

A
  1. C is resident outside of the jurisdiction 🌎 (but is not resident in a state bound by the Hague Convention)
    [individual = habitual abode]
    [company = central management & control]
  2. C is a company and there is reason to believe it will be unable to pay D’s costs if ordered to do so. 🏭
    [must show WILL be unable to pay costs (reason to believe) AND the amount of likely costs]
  3. C has taken steps in relation to its assets that would make enforcement of a costs order difficult. 👣🦹‍♂️
  4. C has changed address since the claim has commenced with a view to evading the consequences of litigation.🏠
  5. C failed to give an address on the claim form. 💌
  6. C is acting as a nominal claimant and there is reason to believe it will be unable to pay D’s costs if ordered to do so.🥸
52
Q

Security of costs: Is the court obliged to give security and when will it be granted?

A

NOT obliged

Only granted if:

  • it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order
53
Q

Security of Costs: What is the procedure for security of costs?

A

Normal rules apply, plus:

  • application notice should state which grounds apply.
  • application must be supported by written evidence which should cover;
    a) the grounds, 🪧
    b) factors in the court’s discretion, ⚖️
    c) the likely costs to trial 💰
    d) the amount of security requested💵
54
Q

Security of Costs: Who sets the amount of security if the claim is successful?

A

The court has full discretion

55
Q

Security of Costs: What 4 forms can the security take?

A
  1. payment into court. 🧑‍⚖️
  2. payment to D’s solicitor 🧑‍💼
  3. bank guarantee 🏦
  4. undertaking to pay costs 📝
56
Q

Interim Injunction: What is the purpose of an interim injunction?

A

it is an order of the court requiring a party to do or refrain from doing a given act.

57
Q

Interim Injunction: How is a breach of an interim injunction punishable?

A

A breach of an injunction is punishable as contempt of court, so fine and/or imprisonment.

58
Q

Perpetual injunction vs interim injunction

A

Perpetual: a final injunction (usually made at trial) that continues with no limitation of time

Interim: a temporary measure taken at an early stage in the proceedings (including pre-action) before trial and before any final decision on the merits of either party’s case

59
Q

Interim Injunction: Can an injunction be taken out pre-action?

A

Yes, in exceptional circumstances:

Where the matter is:

  • Urgent; or
  • It is otherwise desirable to do so in the interests of justice.

in which case, the applicant MUST undertake to the court to issue a claim for immediately.

60
Q

Interim Injunction: What types of interim injunction are there?

A
  • Prohibitory injunction - Requires the respondent to refrain from doing an act.✋
  • Mandatory injunction - Requires the respondent to do a specific act.🫵
  • Quia timet Injunction - allows both prohibatory and mandatory injunctions where a wrong has been threatened but not yet committed.
61
Q

Interim Injunction: What are the factors when the court considers whether an interim injunction should be granted

A

Where it is just and convenient:

1) is there a serious question to be tried? ⚖️
-i.e. not frivolous or vexatious

2) Would damages be an adequate remedy? 💵
a) first consider whether damages adequate for C
b) then consider whether damages adequate for respondent,
3) if not, then consider balance of convenience ⚖️

62
Q

Interim Injunction: What are the equitable considerations when considering an interim injunction?

A

An injunction is a discretionary remedy:

  • practical purpose - an injunction will not be obtained where it would serve no practical purpose. 👷
  • clean hands - the court might refuse an injunction if the applicant has not come to court with clean hands. 🤲
  • delay - Excessive delay may lead to a refusal of the application. ⏱️
63
Q

Interim Injunction: What is are the requirements of an interim injunction application?

A
  • Must be supported by written evidence setting out the facts to justify the relief sought.
  • if made without notice, the evidence must state the reason why notice has not been given.
64
Q

Interim Injunction: What are the 3 additional procedural considerations for an application for an interim injunction beyond the standard process?

A
  1. cross-undertaking in damages.
  2. Without notice safeguards.
  3. timing of claim form when application before a claim is issued.
65
Q

Interim Injunction: What is a cross-undertaking for an interim injunction?

A

Applicant often required to offer a cross-undertaking to pay damages to the court for any loss sustained by reason of the injunction by the respondent or others if it is found that the applicant ought not to have been granted the injunction.

66
Q

Who is the cross-undertaking made to?

A

made to the court, and

can also require an undertaking (as a condition) to be given for the protection of any other person who may suffer loss because of the order.

67
Q

Interim Injunction: What are the safeguards for a ‘without notice’ interim injunction?

A

Injunction granted for a limited period with a second hearing called the return date.

The respondent will be given notice of that hearing and the opportunity to attend it to make representations. The court may make the following orders:

  1. Maintain the order
  2. Discharge/vary the terms of the injunction
  3. Enforce the applicant’s undertaking in damages if the injunction should not have been granted.
  4. Accept an undertaking by the respondent not to do the acts in question in place of the injunction.
68
Q

Interim Injunction: What obligation is there on a claimant when an interim injunction before claim is made?

A

The claimant must undertake to issue the claim form immediately

69
Q

Interim Injunction: What further obligations are placed on the applicant for a without notice interim injunction?

A
  • must make full and frank disclosure 😇(for any interim app. without notice)
  • must prepare a full note of the hearing as soon as possible and this should be served on the respondent (and any other party affected by the order) without delay. 📝📮
70
Q

Interim Injunction: When can an interim injunction be granted?

A

Where it is just and convenient:

1) is there a serious question to be tried?

2) Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?

3) where does the balance of convenience lie?
- first claimant is considered,
- the defendant is considered,
- then balance of convenience considered.

71
Q

If an unless order is made stating that a case will be dismissed unless something is done, what is required after that thing isn’t done by the innocent party?

A

Nothing, the case is automatically dismissed.

72
Q

If an unless order is made stating that a case will be dismissed unless something is done, what is required after that thing isn’t done by the party at fault?

A

Must apply for relief from sanctions or else case will be dismissed

Ella SQE (13 decks)

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