Interim Applications Flashcards
A claimant’s application to strike out the defendant’s claim is unsuccessful, and the judge awards the defendant the costs of the application. The claimant is not at court for the hearing but is represented by her solicitor.
What obligation, if any, does the claimant’s solicitor have to inform the client of the costs order?
The solicitor must inform the client within seven days of the order being made.
Where such a costs order has been made and the client is not present in court, the solicitor is under a duty to inform the client within seven days of the order being made (CPR 44.8) and explain why it was made.
The defendant’s solicitor has issued an application for an unless order that the claimant respond to a request for further information. In accordance with the rules, an informal request was made prior to issuing the application, which allowed the claimant a reasonable time to respond. The claimant did not acknowledge the request or respond although there has been correspondence on other matters in the interim period. The defendant’s solicitor does not serve the application upon the claimant.
Has the defendant’s solicitor followed the correct procedure in relation to service?
Yes, as the court may deal with the application without a hearing.
In an action for trespass, the claimant has applied for a prohibitory interim injunction against his neighbour to prevent her making daily use of a path across the claimant’s land. In support of his application, the claimant has served a witness statement making clear that the neighbour’s activity is without his agreement or permission. Having received notice of the application, the neighbour tells her solicitor that six months ago the claimant agreed to give permission to use the shortcut. The solicitor advises that it may be possible to cross-examine the claimant about this at the hearing of the application.
Is the solicitor correct in giving this advice?
Yes, the neighbour may apply to the court for an order allowing him to cross-examine the applicant.
CPR 32.7(2) gives the court discretion to refuse permission; and there is no notice requirement as such.
In a claim to recover a contested debt of £26,000, the court ordered that unless the defendant give standard disclosure by serving its list of documents by 4 pm on 12 September, its defence would be struck out. It is now 5 October. The defendant has still not served its list of documents. The claimant’s solicitor is to write to his client to update him on the current position and seek instructions on any steps to be taken.
What should the claimant’s solicitor tell his client?
A request for judgment should be filed with the court stating that the right to enter judgment has arisen as the court’s order has not been complied with.
Although the defendant has defaulted on the order, this is not a situation in which default judgment is appropriate.
A claimant has served proceedings against a litigant in person claiming damages for her negligence whilst house-sitting for the claimant which resulted, it is alleged, in a water leak. The defendant has filed a defence to the claim denying negligence, although the reasons given are vague and it is not clear what is admitted or denied. The claimant’s solicitor has advised the client to make an application to strike out the defence.
What order is the court most likely to make on the application?
The court is likely to order the defendant to file an amended defence within a specified time.
Although the defence is vague and unclear which may be viable reasons to strike out the defence on the grounds that it discloses no reasonable grounds for defending the claim (CPR 3.4(2)(a)), the defect could be remedied by amendment. Therefore, the court is unlikely to strike out without first giving the defendant an opportunity to amend.
A solicitor has advised his client, the claimant, that it may be possible in due course for an application to be made for summary judgment to bring the claim to an early resolution. The defendant has not yet filed an acknowledgement of service or defence.
Which of the following is correct advice to give the client regarding an application for summary judgment in these circumstances?
If the claimant makes an application for summary judgment before the defendant has filed a defence, the defendant need not file a defence before the hearing.
A claimant may not apply for summary judgment until the defendant has filed an acknowledgment of service unless the court gives permission (CPR 24.4(1)). In any event, if the defendant has failed to file an acknowledgement of service and the time for doing so has expired, the claimant should be requesting default judgment.
A solicitor is explaining to his client about undertakings in relation to an application for an interim injunction which the client wishes to make.
Which of the following explanations would constitute advice given in error to the client?
The court can compel the client to give an undertaking to pay damages in the event that the injunction is improperly granted.
An application for an interim injunction has been served upon a client, who is a builder. The injunction seeks to prevent the client from beginning building work at large commercial premises as the work means that facilities jointly shared with other businesses will not be available during the building work at the premises.
Which of the following is a correct statement about what the applicant must demonstrate, amongst other things, to persuade the court to grant the injunction?
That the court would need to be satisfied on the balance of probabilities that there is a serious issue to be tried.
The principles set out in the American Cyanamid case will apply and the court will first consider whether there is a serious issue to be tried which, on the facts, is likely.
In a claim for breach of contract, a Claimant has issued a summary judgment application, arguing that the Defendant has no real prospect of successfully defending the claim. At the hearing of the application, the judge finds that the Claimant’s application, although persuasive, does not meet the threshold for summary judgment as the Defendant’s Defence, although weak, is not entirely without merit.
What order is the judge most likely to make to enable the case to proceed to trial?
Make a conditional order requiring the Defendant to pay part of the claim into court or take a specific step in the action within a specified time.
The judge can impose conditions CPR 3.1(3) to ensure that the case is properly managed and that the Defendant’s Defence is properly set out or substantiated.
