Interim Payments and Interim Remedies

Question 1

Interim remedies

Answer 1

Remedies ordered by the court on interim applications

Question 2

Interim payments can-

Answer 2

Alleviate hardship for a claimant caused by the delays of the litigation process

Question 3

Once the court has concluded that a ground for an interim payment has been established-

Answer 3

It will first exercise its discretion whether to make an order at all and then consider size of payment

Question 4

The guiding principle for any award of an interim payment

Answer 4

To ensure that injustice is not caused by any award made

Question 5

An interim payment should not be disclosed to-

Answer 5

The trial judge until after the judgment of both liability and quantum has been made unless the defendant consents

Question 6

Grounds for interim payment

Answer 6

Defendant admitted liability; claimant has obtained judgment but the sum is not yet assessed; court is satisfied that if the action went to trial the claimant would obtain judgment for a substantial sum; same but at least one of the defendant in multiple defendant cases and all defendants insured

Question 7

When can an application for an interim payment be made?

Answer 7

After the end of the period for the filing of the AofS

Question 8

Before an interim payment application is made-

Answer 8

The claimant should make a written request to the defendant asking them to agree to make an interim payment

Question 9

Days for service in respect of interim payment application

Answer 9

14 days for claimant, 7 days for response, 3 days for claimant’s response (before hearing)

Question 10

Written evidence in respect of an interim payment application

Answer 10

Sum of money, items in respect of which, estimate of likely sum of final judgment, reason why the application meets the requirements, any other relevant matters

Question 11

The court will not make an award of an interim payment that is more than-

Answer 11

A reasonable proportion of the likely amount of the final judgment

Question 12

An interim remedy can be obtained when?

Answer 12

At any time from before proceedings are issued until after judgment has been given

Question 13

If an interim remedy application is made by the defendant before the filing of an AofS, what is needed?

Answer 13

A court’s permission

Question 14

Who can grant freezing injunctions and search orders?

Answer 14

Only high court judges

Question 15

Three types of injunction

Answer 15

To prevent someone from taking certain steps, to require the defendant to take action to do something, to require the defendant to take steps to prevent harm occurring

Question 16

American Cyanmid v Ethicon Ltd 1975

Answer 16

The court does not need to be satisfied that the claimant has more than 50% chance of succeeding at trial, the claim is to be not frivolous or vexatious and there is a serious question to be tried; also whether damages would be an adequate remedy to the claimant should the interim injunction be refused

Question 17

Undertaking in damages

Answer 17

Given by a claimant in interim injunctions that will compensate the defendant for any loss suffered as a result of the injunction if it should not have been granted in the first place

Question 18

What does there need to be for the court to grant a mandatory interim injunction?

Answer 18

A high degree of assurance that at the trial of the claim a permanent injunction would be granted or where the is no arguable defence or rare cases where the court can readily and quickly reach a clear view on the basis of the written evidence as to the likely outcome at trial

Question 19

If the injunction order is made by the court on a without notice application-

Answer 19

The order must be personally served on the defendant very quickly and another hearing will be arranged a short time later - return date

Question 20

Applications for search orders and freezing injunctions must be supported by-

Answer 20

Affidavit evidence

Question 21

Breach of an undertaking is deemed-

Answer 21

A contempt of court

Question 22

Instead of contesting an application on notice of an interim injunction, the defendant-

Answer 22

May give an undertaking in terms similar to the terms of the injunction the claimant is seeking

Question 23

All injunctions must be endorsed with-

Answer 23

A penal notice when drawn up and must be personally served on the defendant

Question 24

Consequences of breaching an injunction

Answer 24

Prison for up to 2 years or sequestration of assets

Question 25

Grounds for discharging an injunction

Answer 25

Material non-disclosure on application; failure by claimant to comply with terms on which injunction granted; facts do not justify interim injunction; injunction is oppressive; material change in circumstances of parties

Question 26

When is a freezing injunction appropriate?

Answer 26

Where there’s a risk of the defendant disposing of/removing from jurisdiction the assets before the claim proceeds to trial

Question 27

When making a freezing injunction, the court can also-

Answer 27

Direct a party to provide information about the location of relevant property or assets or to provide information about relevant property which may be the subject of an application for a freezing injunction so that they can be effectively seized

Question 28

Documents to lodge with a freezing injunction application

Answer 28

Application notice, statements of case, relevant affidavits and exhibits, skeleton argument and summary

Question 29

To grant a freezing injunction, the court must be satisfied that-

Answer 29

Cause of action justiciable in England and Wales, good arguable case, assets within the jurisdiction, real risk of disposing

Question 30

The court is likely to infer the risk of disposal of assets more readily if the defendant-

Answer 30

Is resident/based overseas

Question 31

Components of a standard freezing injunction order

Answer 31

Undertakings given by the claimant, order freezing defendant’s assets, time period for which it is to last, any prior right to exercise set off by banks, defendant’s ordinary living expenses

Question 32

Who does a freezing injunction bind?

Answer 32

The defendant and third parties who have knowledge of it

Question 33

When is variation of a freezing injunction appropriate?

Answer 33

No provision for ordinary living expensive; amount in excess of claimant’s claim frozen, no set off provision

Question 34

Discharge of a freezing injunction order - grounds

Answer 34

Inappropriate case, defendant offers other security for claimant’s claim, claimant guilty of material non-disclosure

Question 35

When is it appropriate to make a search order?

Answer 35

In cases where it is obvious that the defendant would not obey the rules relating to disclosure and almost certainly destroy or rid themselves of any incriminating documents/property

Question 36

Requirements for a search order

Answer 36

Extremely strong prima facie case on the merits; defendant’s activities must cause serious potential/actual harm to claimant’s interest; clear evidence that the incriminating documents are in defendant’s possession

Question 37

Who serves a search order?

Answer 37

Supervising solicitor

Question 38

Responsibilities of a supervising solicitor

Answer 38

Explain meaning and effect of a search order, inform the defendant of their right to seek legal advice, prepare a written report

Question 39

Responsibilities of a claimant’s solicitor in search order

Answer 39

Return all original documents within 2 days; deliver to defendant’s solicitors any property title to which is disputed, retain securely all other property

Question 40

Can a forced entry be obtained if search order obtained?

Answer 40

No but contempt of court proceedings can be brought

Question 41

Usual ground for variation of search order

Answer 41

Drawn too widely

Question 42

Considerations before making an interim injunction application

Answer 42

Expense, undertaking in damages, undertaking to issue proceedings, urgency, not to bully an opponent, full and frank disclosure, will not be granted if damages would be an adequate remedy

Question 43

Balance of convenience

Answer 43

Relevant in freezing injunctions - in Cyanide no harm to defendant as production hasn’t started so favoured the claimant