Interim Payments and Interim Remedies Flashcards
Interim remedies
Remedies ordered by the court on interim applications
Interim payments can-
Alleviate hardship for a claimant caused by the delays of the litigation process
Once the court has concluded that a ground for an interim payment has been established-
It will first exercise its discretion whether to make an order at all and then consider size of payment
The guiding principle for any award of an interim payment
To ensure that injustice is not caused by any award made
An interim payment should not be disclosed to-
The trial judge until after the judgment of both liability and quantum has been made unless the defendant consents
Grounds for interim payment
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
When can an application for an interim payment be made?
After the end of the period for the filing of the AofS
Before an interim payment application is made-
The claimant should make a written request to the defendant asking them to agree to make an interim payment
Days for service in respect of interim payment application
14 days for claimant, 7 days for response, 3 days for claimant’s response (before hearing)
Written evidence in respect of an interim payment application
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
The court will not make an award of an interim payment that is more than-
A reasonable proportion of the likely amount of the final judgment
An interim remedy can be obtained when?
At any time from before proceedings are issued until after judgment has been given
If an interim remedy application is made by the defendant before the filing of an AofS, what is needed?
A court’s permission
Who can grant freezing injunctions and search orders?
Only high court judges
Three types of injunction
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
American Cyanmid v Ethicon Ltd 1975
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
Undertaking in damages
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
What does there need to be for the court to grant a mandatory interim injunction?
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
If the injunction order is made by the court on a without notice application-
The order must be personally served on the defendant very quickly and another hearing will be arranged a short time later - return date
Applications for search orders and freezing injunctions must be supported by-
Affidavit evidence
Breach of an undertaking is deemed-
A contempt of court
Instead of contesting an application on notice of an interim injunction, the defendant-
May give an undertaking in terms similar to the terms of the injunction the claimant is seeking
All injunctions must be endorsed with-
A penal notice when drawn up and must be personally served on the defendant
Consequences of breaching an injunction
Prison for up to 2 years or sequestration of assets
Grounds for discharging an injunction
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
When is a freezing injunction appropriate?
Where there’s a risk of the defendant disposing of/removing from jurisdiction the assets before the claim proceeds to trial
When making a freezing injunction, the court can also-
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
Documents to lodge with a freezing injunction application
Application notice, statements of case, relevant affidavits and exhibits, skeleton argument and summary
To grant a freezing injunction, the court must be satisfied that-
Cause of action justiciable in England and Wales, good arguable case, assets within the jurisdiction, real risk of disposing
The court is likely to infer the risk of disposal of assets more readily if the defendant-
Is resident/based overseas
Components of a standard freezing injunction order
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
Who does a freezing injunction bind?
The defendant and third parties who have knowledge of it
When is variation of a freezing injunction appropriate?
No provision for ordinary living expensive; amount in excess of claimant’s claim frozen, no set off provision
Discharge of a freezing injunction order - grounds
Inappropriate case, defendant offers other security for claimant’s claim, claimant guilty of material non-disclosure
When is it appropriate to make a search order?
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
Requirements for a search order
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
Who serves a search order?
Supervising solicitor
Responsibilities of a supervising solicitor
Explain meaning and effect of a search order, inform the defendant of their right to seek legal advice, prepare a written report
Responsibilities of a claimant’s solicitor in search order
Return all original documents within 2 days; deliver to defendant’s solicitors any property title to which is disputed, retain securely all other property
Can a forced entry be obtained if search order obtained?
No but contempt of court proceedings can be brought
Usual ground for variation of search order
Drawn too widely
Considerations before making an interim injunction application
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
Balance of convenience
Relevant in freezing injunctions - in Cyanide no harm to defendant as production hasn’t started so favoured the claimant
