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dispute resolution > interim applications > Flashcards

interim applications Flashcards

1
Q

Request for further info voluntary basis v court

A
  • serve request on other party, stating date for a response
  • response written, dated and signed by the party, if objected give reason within time Frame

request to court:
- interim application where party has not responded or has objected. If the other other party has not responded after 14 days, the app can be made without notice. If court makes an order it must be verified by statement of truth.

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2
Q

CPR 18

A
  1. The court can order any party to clarify a matter in dispute
  2. Give additional information in relation to such matters

But before an app is made, a request to the party should be made and must allow a second party reasonable time to respond.

Test: reasonably necessary and proportionate to enable a party to prepare its own case or to understand the opponents cause

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3
Q

Phones 4U v EE Limited 2020

A

Application for further info rejected because it was made before disclosure

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4
Q

give examples of interim applications

A
  • extending time period for taking a step
  • applying to amend Statement of case
  • further info
  • specific disclosure
  • relying on expert evidence
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5
Q

when should interim applications be made? is there a duty?

A

applications should be made as soon as it becomes apparent that it is necessary or desirable

there is a duty to bunch their interim applications if a hearing has been fixed, it is up to the parties to issue any necessary application to ensure the outstanding matters are dealt with

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6
Q

what are the steps?

A
  1. issue:
    - application notice: N244 form (who making app, what order taught, why, what info relied on in support)
  • evidence
  • draft order
  • fee
  1. serve on other party+ notice of hearing , no less than three clear days before the hearing
  2. Respondent files evidence, applicant can file evidence in response ASAP
  3. A statement for costs in relation to app should be filed and exchanges not less than 24 hrs
  4. hearing/ no hearing if parties agree
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6
Q

what are the steps?

A

issue:
- application notice: N244 form (who making app, what order taught, why, what info relied on in support)

  • evidence
  • draft order
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7
Q

when is a without notice application permitted 23A PD3

A
  1. urgency
  2. object of app defeated
  3. OO furthered
  4. all parties consent
  5. court gives permission
  6. court order, rule or practice direction consents
  7. date for hearing fixed and party doesn’t have sufficient time to serve application notice. Party should still inform the other party and the court ASAP of the nature of the app and reason
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8
Q

what are the safe guards for applications without notice?

A
  1. why no notice
  2. full and frank disclosure - bring to courts attention arguments and evidence in support of respondent
  3. serve respondent of evidence and order ASAP after hearing, regardless of result. Serve: app notice, evidence, and other
  4. court order must contain a statement of the respondents right to make an application to set aside or vary the other, any application to set aside must be made within 7 days of the order being served on the other party.
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8
Q

what are the safe guards for applications without notice?

A
  1. why no notice
  2. full and frank disclosure - bring to courts attention arguments and evidence in support of respondent
  3. serve respondent of evidence and order ASAP after hearing, regardless of result. Serve: app notice, evidence, and other
  4. court order must contain a statement of the respondents right to make an application to set aside or vary the other, any application to set aside must be made within 7 days of the order being served on the other party.
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9
Q

What are the grounds for a summary judgement?

A
  1. The claimant has no real prospects of succeeding on the claim or issue
  2. The defendant has no real prospect of success in defending the claim or issue

And

there is no other compelling reason as to why the case should be disposed of at trial.

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10
Q

what are compelling reasons?

A
  1. expert evidece
  2. more time needed to investigate
  3. multiple parties
  4. expert evidence
  5. D has the right to jury
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11
Q

what evidence is required for a summary judgment

A

applicant must adduce:
- evidence that C/D has no real prospect of success
- evidence that there is no other compelling reason why the case should be disposed of at trial.

app/ evidence must also:
- identity concisely any point of law/ provision in a document which the applicant relies on
- state the application is made because the applicant believes that on the evidence the respondent has no real prospect of success and knows of no other compelling reason why the claim or issue should be disposed of at trial

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12
Q

what evidence is required for a summary judgment

A

applicant must adduce:
- evidence that C/D has no real prospect of success
- evidence that there is no other compelling reason why the case should be disposed of at trial.

app/ evidence must also:
- identity concisely any point of law/ provision in a document which the applicant relies on
- state the application is made because the applicant believes that on the evidence the respondent has no real prospect of success and knows of no other compelling reason why the claim or issue should be disposed of at trial

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13
Q

who can apply for a summary judgement?

A

C- after D files AKS/ defence
D- any time after proceedings have commenced
Court- its own initiative

ideally C/D should apply for summary either before or at the same time as filing the directions questionnaires to avoid costs

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14
Q

what is the difference in the standard interim app v summary

A
  • notice for hearing served 14 days before
  • respondent submits evidence 7 days before hearing
  • applicant files evidence in response 3 days before the hearing
15
Q

What are interim payments?

A

Application made by C for a payment of account of damages, debt or other sum (NOT COSTS) which D may be held liable for

16
Q

what conditions need to be satisfied for an interim payment?

A

The court will only make an order where any of the following conditions are satisfied:

1) D admitted liability to pay damages to C, or

2) C obtained judgement against C for damages to be assessed, or

3) Court is satisfied that, if the claimant went to trial, C would obtain a judgement for a substantial amount of money against the D they are seeking the interim payment from (regardless of whether there are other Ds)

17
Q

what conditions need to be satisfied for interim payment

A
  1. d admitted to liability or
  2. C obtained a judgement against D for damaged to be assessed
  3. the court is satisfied that if C went to trial they would obtain a judgement for a substantial amount against D
18
Q

what evidence must C provide?

A
  • Reasons for believing that condition for making interim payments are satisfied
  • sum of money for which final judgement is likely to be
  • sum of money sought by interim payment
  • items sought by way of interim payment
  • In PI cases- details of damages past and future
19
Q

what evidence must C provide for an interim payment ?

A
  • Reasons for believing that condition for making interim payments are satisfied
  • sum of money for which final judgement is likely to be
  • sum of money sought by interim payment
  • items sought by way of interim payment
  • In PI cases- details of damages past and future
20
Q

Procedure for interim payment

A
  • C should first ask D, if D refuses or defends the claim then C can apply.
  • Application for interim payment can only be made after D files AoS or time expires.
20
Q

Procedure

A
  • C should first ask D, if D refuses or defends the claim then C can apply.
  • Application for interim payment can only be made after D files AoS or time expires.
21
Q

How does the procedure for interim payments differ?

A
  • serve D 14 days before hearing
  • D files evidence 7 days before hearing
    C- files evidence in response 3 days before hearing
22
Q

what is a security for costs?
who can it be made by?

A

application made made by D who is worried that C will not be able to pay Ds costs should D be successful

D v C
C v D in counterclaim
Third- party against D

23
Q
A
24
Q

what is a security for costs?
who can it be made by?

A

application made made by D who is worried that C will not be able to pay Ds costs should D be successful

D v C
C v D in counterclaim
Third- party against D in part 20

25
Q

what are the ground for a security for costs? what is the test?

A

one or more:
1. Jurisdiction- C is not in UK or Hague convention county (UK =, EU, Singapore, Montenegro)

  1. C is a business with little money- there is reason to believe C will be unable to pay.

D must show the company’s A) inability to pay costs and
B) the amount of likely costs

The defendant must show that there is reason to believe the claimant will be unable to pay even if the claimant can adduce substantial evidence to the contrary (Jirehouse case)

  1. Claimant has taken steps regarding assets to make enforcement difficult
  2. Change of address
  3. C failed to give its address in the claim form
  4. Claimant is acting as a nominal claimant and there is reason to believe it it cannot pay D’s costs

AND

Having regard to all circumstances of the case, it is JUST make an order (Cours discretion)
also OO

26
Q

What may be considered under just?

A

Triplan

  • admission of liability by D/ Substantial open offers
  • Late application
  • claim appears not genuine, or has little prospects of success
  • If D is responsible for Cs financial difficulties then the claim is less likely to succeed
27
Q

what is the procedure for an order for security for costs? what does the written statement need to contain?

A
  • Normal interim procedure

WS:
- The grounds relied on to show Cs inability to pay
- Factors under ‘just’
- likely cost
- amount of security requested

28
Q

What costs does the court give? what factors are considered?

A

-Courts discretion, taking into account:
- Ds costs
- what costs will be covered
- any reduction
- other factors: Delay

29
Q

Interim injuction

A

Equitable and discretionary order of the court requiring a party to do something or to refrain from doing something.

Breach is a contempt of court- fine/ imprisonment

30
Q

Prohibitory injunction
Mandatory injunction
Quia times injunction

A

Prohibitory injunction- refrain from doing something

Mandatory injunction- must do something

Quia times injunction- both

31
Q

Prohibitory injunction
Mandatory injunction
Quia times injunction

A

Prohibitory injunction- refrain from doing something

Mandatory injunction- must do something

Quia times injunction- both

32
Q

what is the test and evidence required for an interim injunction?

A
  1. is there a serious question: pre-existing cause of action
  2. Would damages be an adequate remedy for a part injured by the courts granting or failure of granting an interim injunction?
  3. Balance of convenience
33
Q

what equitable principles apply as to injunctions? no injunction if…
(3)

A

No injunction if:

  1. no practical purpose
  2. if applicant has not come to court with ‘clean hands’
  3. excessive delay
34
Q

what are cross Undertakings

A
  • applicant offers a cross-injunction to pay damages to respondent for any loss sustained by reason of the injection if its held that the applicant ought not be be granted an interim injunction.
35
Q

what happens once the order has been granted?

A

injection is granted initially for a limited period, court will fix a second hearing called the ‘return date’ where the court decides to:
- maintain the injunction
- discharge it
- enforce the undertaking in damages
- accept an undertaking by R not to do the act

dispute resolution (16 decks)

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