Interim Applications

Question 1

What is strike out

Answer 1

Designed to target cases inadequately drafted or abuse of process

Court may exercise power to strike out whole or part of statement of case

Question 2

Who can apply for strike out

Answer 2

Any party

Court on its own initiative

Question 3

When might court exercise power of its own initiative to strike iut

Answer 3

Around allocation stand

Question 4

Grounds for strike out

Answer 4

Statement of case discloses no reasonable ground for bringing or defending claim

Statement of case is abuse of court’s process, or otherwise likely to obstruct just disposal of proceedings - eg vexatious litigant commencing claim with no intention to take forward

Failure to comply with rule, PD or court order
- if fair hearing is still possible then courts unlikely to strike out

Question 5

Judgment after strike out

Answer 5

Where the court makes an ‘if’ order, eg term of SOC struck out unless party complies with order, and the party does not comply - the other party can generally obtain judgment with costs

Question 6

When should interim application be made

Answer 6

As soon as it becomes apparent it is necessary/desirable to make an application

Parties should bunch applications

Question 7

With notice procedure for interim application

Answer 7

1) issue interim application
- file application notice
- court fee
- make claim to court dealing with main claim
- provide evidence - eg witness statement
- file draft order

2) serve application on other party after issue by court
- asap but not less than 3 clear days before application is to be heard
- other party must be given application notice, notice from court indicating time and date, evidence and draft order

3) further evidence
- respondent may file further evidence asap
- applicant may also file further evidence asap

4) statement of costs
- both parties to file not less than 24 hours before hearing

5) hearing take place

Question 8

Without notice procedure for interim applications

Answer 8

1) application notice filed and issued by court
- file application notice
- pay court fee
- evidence
- draft order

NOT FILED ON RESPONDENT

2) hearing
- court hears only from application

3) after hearing
- applicant serves notice, evidence and court order on respondent (even if not granted)

Question 9

When can without notice procedure be used

Answer 9

Search order
Freezing order

Question 10

Can respondent set aside without notice interim application order

Answer 10

Respondent can apply to set aside within 7 days of court granting the order

Question 11

Purpose of summary judgment

Answer 11

Enables court to dispose of weak claims or issues and brings claim to an early end

Question 12

Who can claim for summary judgment

Answer 12

Either party

Question 13

Grounds for summary judgment

Answer 13

Claimant/defendant has no real prospect of succeeding/defending claim

AND

No other compelling reason why case should be disposed of at trial

Question 14

No real prospect (summary judgment)

Answer 14

More than merely fanciful

Question 15

Examples of compelling reason (summary judgment£

Answer 15

Need more time to investigate
Expert evidence required
Complex issue
Factual dispute - cross examination?
Multi party litigation

Question 16

When to apply for summary judgment

Answer 16

Claimant - after D has filed acknowledgement or defence

Defendant - any time after proceedings commence

Question 17

Procedure for summary judgment

Answer 17

1) applicant issue and serve notice at least 14 days before hearing

2) responding file evidence at least 7 days before hering

3) applicant serves evidencevin reply at least 3 days before hearing

4) both parties file / exchange statement of costs not less than 24 hours before hearing

Question 18

What is application for interim payment

Answer 18

Payment on account of damages, debt or other sum which defendant may be held liable to pay to the claimant

Question 19

Conditions for interim payment

Answer 19

Court will only make an order if one of the below is satisfied
- d has admitted liability to pay damages
- c has obtained judgment against D for damages to be assessed
- court is satisfied that, at trial, C would obtain judgment for a substantial amount of money

Question 20

Evidence for application for interim payment

Answer 20

Witness statement must address
- reasons for believing grounds satisfied
- sum of monry for which judgment likely to be given
- sum of money sought and why
- any other relevant matters

Any docs in support must be exhibited

Question 21

Procedure for interim payment application

Answer 21

1) seek voluntary payment from d firdt

2) if after period for d filing acknowledgement of service then c can apply to court

3) c sends below to D at least 14 days before hearing
- application notice
- supporting evidence
- draft order
- notice of hearing date

4) d files at court and serves on C evidence at least 7 days before hearing

5) claimant files at court and serves on d evidence in reply at least 3 days before hearing

6) both parties file and exchange statement of costs not les than 24 hours before hearing

Question 22

Restriction on telling judge about interim payment

Answer 22

Unless d agrees, any interim payment made in course of proceedings will not be disclosed to trial judge until liability and quantum decided

Question 23

What is security for costs

Answer 23

Made by defendant who is concerned that claimant will be unwilling or unable to pay d’s costs should they be successful

Question 24

How can security for costs be given

Answer 24

Payment into court
Payment to d’s solicitor
Bank guarantee
Undertaking

Question 25

When can application for security for costs be made

Answer 25

Promptly and as soon as facts justifying order are known

Court likely to refuse if significant delay

Question 26

Grounds for security for costs

Answer 26

One or more of the below
- c is resident outside of jurisdiction in state not bound by hague convention
- c is a company and reason to believe unable yo pay D’s costs - d does not need to prove on balance of probabilities. Show accounts as evidence
- c has taken steps with assets to make enforcement hard
- c has changed address to evade consequences
- c has failed to give address on claim form

Having regard to all circs it is just to make an order
- court will consider c’s ability to comply with order else restrict access to justice
- admission of liability by D - less likely claim will succeed
- claim appears not to be genuine
- overriding objective

Question 27

Procedure for security for costs

Answer 27

Application to court supported by witness statement

1) d serve application notice stating grounds relied on, draft order, evidence and notice of trial hearing on c not less than 3 clear days before hearing

2) c may file further evidence asap and d can also file in response

3) statement of costs exchanged not less than 24 hours before hearing

Question 28

What is an interim injunction

Answer 28

Temp measure taken at early stage
- prohibitory
- mandatory
- quia timet (where wrong threatened)

Question 29

Grounds for interim injunction

Answer 29

Just and convenient

• is there a serious question to be tried
• would damages be an adequate remedy for court’s grant of or failure to grant injunction?
• where does balance of convnience lie??

Question 30

Procedure for interim injunction

Answer 30

1) apply to court to issue
- file app notice, court fee, draft order, evidence

2) serve on other party no less than 3 days before hearing
- app notice
- notice of hearing
- evidence
- draft order

3) respondent may file ev in response asap and so can applicant

4) statement of costs not less than 24 hrs before hearing

Question 31

What is cross undertaking in damages? (Injunction)

Answer 31

Court likely only grant if applicant offers this to pay damages if respondent suffers loss if it is subsequently held injunction should not have been granted

Paid into court

Question 32

Can application for injunction be made without noticr

Answer 32

Yes if justified - will be granted for temp period and court will set return date.

Respondent can attend and make representations and court can either maintain or discharge

Question 33

Standard timings for interim applications and which apply to?

Answer 33

1) apply to court

2) serve on party asap not less than 3 days before hearing

3) file/exchange statement of costs not less than 24 hours before

Security for costs
Interim injunction
Strike out
Request for further information

Question 34

Longer timings for interim injunction

Answer 34

1) apply to court

2) serve notice of hearing etc on respondent asap at least 14 days before hearing

3) respondent file evidence in reply at least 7 days before hearing

4) applicant serve evidence in reply at least 3 days before hearing

5) statement of costs - 24 hrs before

Summary judgement
Interim payment