SGS 8 - Interim Applications Flashcards
What factors were outlined in Parkinson v Triplan [1973]?
- Whether the claimant’s claim is bona fide and not a sham.
- Whether the defendant is using the application oppressively, e.g. to stifle a genuine claim.
- Delay in making the application.
- Whether the claimant’s want of means has been brought about by the defendant’s conduct.
What was said in Olatawura v Abiloye [2002]?
The court must take into account the amount which the respondent is likely to be able to raise, so as not to impair their right of access to the courts. Therefore, the court must carry out a balancing act.
What was said in MV Yorke Motors v Edwards [1982]?
In deciding the amount of security to order, the onus is on the claimant to show that it would be impossible to comply - and the onus is on the claimant to put proper evidence before the court.
When determining the amount of a security, what will the court take into account?
- the amount of the defendant’s likely costs.
- the security may be given for the whole action/to a point in time i.e. in stages such as up to disclosure.
- the amount can cover costs incurred, including costs incurred in complying with a pre-action protocol and future costs.
- a deduction may be made for detailed assessment or the possibility of settling (security is rarely ordered on a full indemnity basis)
- other factors (e.g. delay may mean that the court does not order security for some/all of the costs already incurred, instead giving security for future costs only.
What types of security are there?
- Payment into court
- Payment to the applicant’s solicitor
- Bank guarantee
- Undertaking to pay costs
How do you given notice to a respondent?
By sending the respondent a copy of the application notice, and evidence in advance of the hearing.
When should you make an interim application?
As soon as it becomes apparent that it is necessary or desirable to make the application - 23A PD 2.7.
Where should you apply?
The application should be made to the court in which the main claim is presently being dealt with, or likely to be dealt with. There is a power (CPR 2.7) for the court to deal with cases at any place the court considers appropriate.
How do you apply?
The applicant prepares an application notice (using form N244) and issues it at court.
What should an application notice contain?
CPR 23.6 - State what order the applicant is seeking and briefly why the applicant is seeking it.
In addition to the application notice, what other documents should be sent to the court?
- Supporting evidence.
- Draft order.
- Bundle of documents.
- Skeleton arguments.
What are the different types of interim costs order?
- Costs in any event.
- Costs in the case.
- No order for costs.
In what circumstances will a hearing not be necessary?
- the parties have agreed the terms of the order (40.6)
- the parties agree there should be no hearing (23A PD 2.3)
- the court does not consider a hearing appropriate (23.8)
What is the difference between striking out a claim (under CPR 3.4) and making a summary judgement (CPR 24)?
Striking out - focuses on the statement of case and covers cases which do not amount to a legally recognizable claim or defence.
Summary judgement - Covers cases which are weak on facts.
Swain v Hillman [2001]
‘No real prospect’ - The words meant whether there was a realistic (as opposed to a fanciful) prospect of success.
