dr- interim applications Flashcards
what should be done before applying to the court for an interim application?
application and hearing procedure: parties should firstly seek agreement with the opponent
what is the procedure for an interim application?
N244 setting out the order sought and the appropriate grounds alongside the court fee to the court of claim accompanied by:
- witness evidence, affidavit, by reference to a statement of case. this is made by a person with appropriate knowledge.
- technical orders tend to be reasoned solicitors, others may be evidenced by the client
evidence should outline the factual information and anticipate the opponent’s case.
- draft order sought
- estimated costs and length of an interim hearing
- statement of truth
- grounds 0 grounds of the order must be set out
how are hearings held?
interim hearings are usually required and can be heard with or without notice. solicitors make submissions, but the case is decided on the written evidence, there is no oral evidence.
who pays the costs of an interim hearing?
decided at the hearing itself.
- pay as you go - losing party a hearing pays. - less common if the winner is at fault
- costs int he case
- costs reserved to be decided later
- no order - each party pays its own costs.
- wasted costs order - applicant or their solicitor pays for poor conduct or errors in the process.
test for strike out?
the statement of case must either
be unreasonable = poor legal or factual basis
- abuse of process
failure to comply with a rule practice direction or court order
2) fairness - it must be fair to strike out the document with reference to the overriding objective and the effect on the opponent.
what is the test for relief from sanctions?
denton test
1) assess the seriousness of the breach - was it serious or substantial?
2) good reason
3) fairness - would a relief be fair in reference to the overriding objective and other parties and was relief sought promptly? if so
test for setting aside default judgement CPR 13
- mandatory ground: court must set aside if judgement was wrongly entered
- discretional grounds:
- the applicant has a real prospect of success at trial
- there is some other compelling reason for failure to respond.
CONSIDER DENTON PRINCIPLES AS IT IS A RELIEF FROM A SANCTION.
How do you amend a statement of case?
parties can seek to amend - the must serve the old and amended statements to the court alongside the n244
1) within the limitation period - courts will permit amendments within the limitation period if this is fair with reference to the overriding objective and other parties or they can agree to amend.
2) outside the limitation period - courts may permit amendments outside if:
1
extension of time limit
party may seek to extend a time limit for a court direction or service of a document provided they apply before expiry of the original time limit.
think of the denton test.
summary judgement
- no real prospect of success - it lacks evidential merit and it is a flight of fancy.
- no other compelling reason why the case should be disposed of at trial. e.g. technical case which requires expert evidence and witnesses.
interim injunction
Interim Injunction: Parties can seek injunctions against opponents prior to final judgment, to remain in effect until final judgment or otherwise ordered. Only Circuit Judges and Judges can grant interim/interlocutory injunctions.
(1) Grounds: It must be just and equitable to order an interlocutory injunction with respect to the relevant guidelines.
- Pre-Action: Injunctions can only be ordered pre-issue of claim if urgent or in the interests of justice.
(2) Guidelines: Courts consider the American Cyanamid v Ethicon guidelines:
* The issue to be tried must be serious (i.e. valid legal merit);
* Damages would be inadequate (or respondent does not have means to pay them);
* The balance of convenience must lie with the applicant (risk of no injunction outweighs risk);
* Any other special factors.
(3) Cross-Undertaking In Damages: Applicants must undertake to pay the Respondent associated damages if it later transpires that the injunction was unwarranted.
>Applicants must establish that they have funds to meet any such damages.
(4) Pre-Issue Undertaking: Applicants who seek an injunction prior to issuing proceedings must undertake to issue proceedings if the injunction is granted.
(5) Types of Injunction: The primary forms of ordinary injunction are mandatory and prohibitory injunctions.
- Mandatory: Defendant is ordered to rectify an issue.
>Must be a high degree of assurance that it will appear that the injunction was rightfully granted at full trial (requires very strong evidence).
>Advocates should not disguise a mandatory injunction as a prohibitory injunction, i.e. ‘the defendant should be prohibited from having the wall in its current location’. This is mandatory.
-Prohibitory: Defendant is prohibited from continuing an act.
Special Injunctions
Special Injunctions: Two types of injunction can be granted without notice (for good reason). These can only be granted by a High Court Judge, and must be supported by affidavit.
(1) Freezing Order: Respondent is restrained from removing their assets from the jurisdiction if there is a real risk that they will be taken out of the country to defeat judgment.
(2) Search Order: Applicant is permitted to search the Respondent’s premises if there is a strong case that they would otherwise suffer serious harm (usually due to stolen or incriminating materials).
(3) Appeal: Respondents can appeal in a pre-fixed hearing, or on application to set aside.
how is an interim payment applied for?
made once acknowledgement of service has been filed - can be a lump sum or paid for in instalments
grounds:
1. admission: respondent has admitted liability
2. pending damages: applicant has obtained judgement pending calculation of damages
3. future damages applicant establishes on balance of probabilities that a substantial sum of money is indisputably due to them on judgement
other factors
1. must be proportionate of the substantial sum of money accounting for contributory negligence set off and counterclaim
fairness: it must be fair and appropriate to make the order with reference to the OVERRIDING OBJECTIVE AND THE OPPONENT.
how is security for costs applied for
cpr 25: parties can seek security for costs from the opponent, meaning a claimant is ordered to pay potential costs into court on the basis they may be unlikely to pay them at final judgement.
a condition must be met:
-respondent or their assets are domiciled outside of the UK
- respondent is a company and in financial difficult and will not be able to pay costs
- respondent has taken steps to become judgement proof, intentionally or otherwise e.g. assets held on trust by others, changed or given wrong address to evade other consequences.
and
it must be in the interests of justice to order security considering factors such as
- prospects of success
- stifling the opponent - should not stifle the opponent’s prospects for success (i.e continue the claim)
- culpability
- prompt application (as soon as reasonably practicable)
how is specific disclosure applied for?what is
applications are typically made with notice to the other party served 3 clear working days prior to an interim hearing. this is with exception to summary judgement/interim payment which must be given 14 days clear notice of hearing and thy can file at least their own evidence at least 7 days before the hearing.
what are the with notice timings for a summary judgement /interim payment
14 days before the notice of hearing instead of usual three days and they can file their own evidence at least 7 days before the hearing.
