Interim Hearings

Question 1

Security for Costs: substantive tests

A security for costs order is an order than the CLAIMANT provides security for the DEFENDANT’S COSTS, SHOULD THE CLAIMANT LOSE AT TRIAL.
(thus, application is made by the defendant)

CPR 25.13 (orange)

Answer 1

(1) GROUNDS - see CPR 25.13 (orange)
- Resident outside the jurisdiction) - but not Brussels, Lugano or Regulation State - but ONLY if lack of recipriocal enforcement

• Impecunous company (focus on liquidity and the future - should put some money in safe place now!)
  ‘the claimant is a company or other body and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so’ (CPR 25.13)
• other grounds (not relevant to LPC, but in CPR 25.13)

UNISOFT NO. 2:
- can take into account predictions for future based on current financial and other information

(2) ‘JUST TO MAKE THE ORDER IN ALL THE CIRCUMSTANCES’ - A DISCRETIONARY ORDER!

(i) MAIN FACTOR
- can respondent actually comply with the order? OLATWURA v ABILOYE
- or, would doing so put the Respondent out of business and stifle the claim entirely?

(ii) OTHER FACTORS, with regard to “all the circumstances of the case” - comes from
SIR LINDSAY PARKINSON v TRIPLAN

• is the claim bona fide or a sham? (Stronger the claim, less likely court is to grant security for costs)
• is the application being used oppresively?
• was there delay in making the application?
• has the defendant (applicant) caused the claimant’s (respondent’s) want of means?
  (question is to what extent was the overall financial position caused by the defendant?)

Question 2

Security for Costs: procedural

Answer 2

(1) Application Notice

(2) Evidence in support
- witness statement
- estimate of costs
- relevant exhibits

(3) Draft Order
(4) Pay fee
(5) Skeleton argument
(6) Statement of costs (for hearing itself)

Question 3

Amount and type of security

CPR 25.12

Answer 3

If court grants application for security for costs, amount is entirely within court’s discretion - will fix a sum it thinks just

Can be ordered by:

• a payment into court (most common)
• a payment to the applicant’s solicitor
• a bank guarantee
• by providing an undertaking to pay costs

Question 4

Summary Judgment: substantive tests

CPR (orange)

Answer 4

(1) IDENTIFY PURPOSE OF APPLICATION FOR SJ
- e.g. summary judgment od whole claim, or part of it, or particular issues?

(2) WHO CAN APPLY?
- Either party, or court its own volition

(3) WHEN CAN AN APPLICATION BE MADE?
- if Claimant, any time after acknowledgment of service served
- if Defendant, at any time, but in practice, would serve acknowledgment of service first to avoid judgment in default etc.

(4) GROUNDS - CPR 24.2

• Claimant has no real prospect of succedding on the claim or issue; OR
• Defendant has a real prospect of successfuly defending the claim or issue

SWAIN v HILLMAN
- “real” = realistic, as opposed to merely fanciful, imaginary or false + not to be a mini-trial!

AND there must be SOME OTHER COMPELING REASON - e.g:

• complexity
• need for evidence
• need to ‘test’ evidence
• public interest

Question 5

Summary Judgment: procedural

Answer 5

(1) File:
- Application Notice
- Evidence (including witness statement)
- Draft Order

(2) Applicant should serve at least 14 days before hearing
Respondent should reply to witness statement etc. at least 7 days before hearing
Applicant should respond to Respondent’s reply at least 3 days before hearing

(3) Skeleton
(4) Statement of costs (prepared by both sides)

Question 6

Interim Cost Orders

CPR 44 PD, 4.2
orange

Answer 6

See CPR 44 Practice Direction, 4.2!

COSTS IN ANY EVENT
- whoever wins on the order is entitled to costs in respect of it, regardless of final outcome of case.

COSTS IN THE CASE
- whoever wins on costs at the trial stage will be entitled to costs for the order

COSTS RESERVED
- decision about costs deferred to a laer occasion; if no later order made, costs in the case.

see rest of the PD