Particulars of Claim and Interim Applications Flashcards
How can a claimant dispute a counterclaim?
By filing a defence to the counterclaim within 14 days
Can a statement of case be amended while within the limitation period?
Yes. If the statement of case has been filed but not yet served it can be amended at any time.
However, if the statement of case has been served:
a) Written consent of all the parties; or
b) The permission of the court
Can defendants make additional claims against non-parties?
Yes can be done without the court’s permission provided that this is done either before or at the same time as they file the defence
Can statement of case be amended after the limitation period expires?
Can be amended with the court’s permission provided that it is:
a) to add or substitute a new claim, if this arises out of the same or substantially the same facts as an existing claim;
b) to correct a genuine mistake as to the name of a party;
c) to alter the capacity in which a party claims
Can a request for further information be made?
Yes under CPR Part 18. Can be requested and if successful the party will be ordered to:
a) clarify any matter that is in dispute; or
b) give additional information in relation to any such matter
What is the procedure for requesting further information?
Must first serve a written request on the other party, allowing a reasonable time for the response.
Request should be concise and strictly confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their own case or to understand the case they have to answer
What is the procedure for responding to a request for further information?
The response must be in writing, dated and signed by the party or their solicitor. Should set out the same information as the request and then give details of the response.
Must be:
- Served on all the parties
- Filed with the court; and
- Verified by a statement of truth
How can an interim application be made?
The applicant must complete an application notice and Form N244 should be used
What must the interim application state?
Must state the order being sought and why. While not required, it will be necessary to set out the facts the party is relying on in support of, or for opposing, the application
If the issue is not straightforward, a witness statement may be filed at the same time
Who can make the witness statement for interim applications?
By a person best able to address the relevant points from personal knowledge. If application is more technical, this could be the solicitor
What must the witness statement include?
a) The factual information and the evidence in support of the application; and
b) Anticipate the opponent’s case, where appropriate
Should a draft order be attached to the order for interim application?
Yes unless the case is very simple
When are interim applications deemed served?
3 clear days, excluding weekends and bank holidays
When are consent orders necessary?
When the parties have reached agreement and have no need for an attendance at the hearing
What is the procedure for interim applications without notice?
Following documents must be served on the respondent as soon as it is practicable:
a) the court order;
b) the application notice; and
c) any supporting evidence
In cases where an interim application without notice has been granted, what can the respondent do?
Can apply to set aside or vary the order within 7 days of it being granted
What is the rule for telephone hearings and video conferencing?
If the interim application is estimated to last 1 hour or less it should be conducted by telephone if at all possible
When may the court give a summary judgement on the whole of the claim or on an issue?
When:
a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
b) there is no other compelling reason why the case or issue should be disposed of at a trial
Who can make an application for summary judgement?
Can be made by either party at any time. Court permission is only required where the claimant wishes to apply before the defendant has filed an acknowledgement or a defence.
What is the procedure for summary judgement?
- Application with Form N244 and (usually) a witness statement in support.
- If the applicant wishes to rely on further evidence, this must be filed and served at least 3 days before the hearing
Respondent must:
- be given at least 14 days’ notice of the hearing date; and
- file and serve any written evidence at least 7 days before the hearing
What orders can be granted via summary judgement?
1) Judgement on the claim: claimant has succeeded and the matter proceeds to enforcement
2) Striking out or dismissal
3) Conditional offer: neither side has won. Is made where the court concludes it is possible, but not probable, that the claim or defence may succeed.
What must the courts take into consideration when deciding whether or not to grant an interim injunction?
a) there is a serious question to be tried
b) damages are an adequate remedy for either side;
c) the balance of convenience lies in favour of granting or refusing the injunction; and
d) whether there are any special factors
What is the timing and procedure for interim payments?
Claimant may not seek an interim payment until after the time for acknowledging service has expired
Notice must be served at least 14 days before the hearing date. Evidence must be provided and should set out:
- amount requested
- amount of the sum of money that is likely to be awarded at final judgement
- reasons for believing that the grounds required by the CPR are satisfied
What are the grounds for interim payments?
a) the defendant has admitted liability; or
b) the claimant has obtained a judgement against the defendant for damages to be assessed or for a sum of money; or
c) the court is satisfied that, if the case went to trial, the claimant would obtain judgement for a substantial amount of money (other than costs) Must be proven on the balance of probabilities
