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Civil Litigation > SGS 8: Summary Judgement (Interim Application) > Flashcards

SGS 8: Summary Judgement (Interim Application) Flashcards

1. appreciate the procedural requirements and documentation required for an interim application and hearing; 2. understand the nature of summary judgment and its role in civil proceedings, and apply the test for summary judgment to a given set of facts; 3. understand and be able to apply for an appropriate interim costs order depending on the outcome of the hearing of an interim application; 4. formulate oral submissions on behalf of your client at a summary judgment hearing, making use of

1
Q

What are interim applications?

A
  • Made to the court

- For orders or directions which will help a case, usually between commencement and trial.

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2
Q

What are the procedural requirements for making an interim application?

A
  • Without notice application

- On notice application

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3
Q

What is a without notice application?

A
  • Other side doesn’t know until heard by the court. After hearing, other side will receive copy of court order & applicant must send application notice and evidence.
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4
Q

What is an “on notice application”?

A

Other side knows of the application & give copies of all your documents regarding why you want to apply, giving the other
party a chance to respond. Both parties attend the hearing.

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5
Q

What are the characteristics of an On Notice Application?

A

When: Early as poss 23 PD 2.7
Where: to relevant court- CPR 23.2
How
1. CPR 23 – Prepare application notice & issue at court (Form N244) along with fee, supporting evidence, draft order & statement of costs. Minimum 3 copies required.

  1. CPR 23.7 & CPR 6 – Serve on the other side (by court or applicant) – effected ASAP after issue and not less than three clear days before application is to be heard.
  2. CPR 23A PD 9 – Respondent can then file evidence for the hearing.
  3. CPR 44 PD 9.5 – Statement of Costs
    1. Hearing/Order
    2. CPR 44 PD 4.2 – Interim Costs Order made
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6
Q

What are the types of Interim Applications?

A
  1. Summary judgment
  2. Security for costs
  3. Interim injunctions
  4. Set aside judgments, Extension of times, Relief against sanctions, Challenge jurisdiction
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7
Q

At interim hearings, what sort of discretion do the courts have in terms of costs orders?

A
  • Extremely wide discretion

CPR 44.2

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8
Q

What is the purpose of security for costs?

A
  • Where D = concerned that the party making the claim
  • Will not not sufficient funds to meet the costs of the action
  • Should the claim be successfully defended
  • i.e. acts as protection for defendant and relates solely to costs
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9
Q

Who can apply for security for costs?

A
  • The person in the position of a defendant
  • Normally only D can apply
  • But C can apply in respect of a counter-claim
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10
Q

What are the 3 forms of security for security for costs?

A
  1. Payment into court
  2. Charge
  3. Bank / parent company guarantee
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11
Q

What are the 3 forms of security for security for costs?

A
  1. Payment into court
  2. Charge
  3. Bank / parent company guarantee
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12
Q

What happens to the claim until security is paid?

A
  • The proceedings are stayed
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13
Q

What is the approach for GROUNDS for security for costs?

A

CPR ref

  1. 13(a)
  2. 13(c)
  3. 14(2)
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14
Q

Explain the exercise of discretion for Security for costs?

A
  • CPR 25.13: Even if a ground is made out, court is not obliged to give security. Only granted if the court:
  • “Is satisfied, having regard to all circumstances, that it is just to make an order”
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15
Q

Explain the main factor to consider for security for costs and what the courts need to do to do this?

A
  • Ability of the respondent to comply with any order for security of costs
  • OLATAWURA: this case, balancing
  • injustice to C (in being prevented from carrying on the claim if cannot put up security) vs. injustice to D (in being at risk of costs if no security provided).
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16
Q

What are the OTHER FACTORS to consider for security for costs, and what the courts need to do to do this?

A
  • Parkinson…(see more detail in chapter notes)
    i. Whether C’s claim is bona fide and not a sham
    ii. Whether application is being used oppressively to stifle a genuine claim
    iii. Delay in making the application
    iv. Whether C’s want of means was brought about by D’s conduct.
17
Q

Explain how the amount of costs for security for costs is entirely in the courts discretion?

A
  • CPR 25.12(3) - entirely within the courts discretion.
  • Taking into account certain factors:
  • Amount of D’s likely costs, up to what stage will costs be paid, deductions for attempts to settle, deduction for delay in making application.
  • Court will set a date for payment – if successful, proceedings stayed until SoC are paid.
18
Q

What are the 3 procedure notes for a security of costs application?

A
  1. Application notice should state which ground applies.
  2. Evidence in form of a witness statement, covering the ground, the factors in exercise of discretion and the amount of security requested.
  3. Application should be made as soon as the facts justifying the order are known.
19
Q

What is the purpose of a summary judgement?

A
  • Enables court to dispose of weak cases / issues
  • Without need for a full trial,
  • Helps achieve overriding objective.
  • arises where cases are weak on the facts rather than where there is a weak legal argument.
20
Q

Who can apply for summary judgement?

A

Either party, or court by its own initiative.

21
Q

Where does one apply for summary judgement?

A

To the court in which the claim is being dealt with.

22
Q

When does one apply for summary judgement, generally?

A

As early as possible – before filing DQs.

23
Q

when should the C apply for summary judgement?

A
  • D must have served defence or AoS. If C applies before this, D need not file defence before hearing as time for service is automatically extended.
24
Q

when should the D apply for summary judgement?

A
  • D does not have to file defence or AoS and can apply at any time after proceedings have commenced
25
Q

What approach should be taken for a summary judgement?

A
  • Test is in CPR 24.2
    i. C has no real prospect of succeeding or D has no real prospect of successfully defending the claim, and
  • Swain v Hillman – Whether a realistic, as opposed to fanciful, prospect of success. Not ‘real and substantial’.
  • International Finance Corp – There must be a real prospect of the defence or claim succeeding. ‘Real’ means ‘better than merely arguable’.

ii. There is no other compelling reason why the case or issue should be disposed of at trial. Compelling reason might be:
- Complex or disputed facts
- D needing more time to investigate the claim
- Need for expert evidence to be adduced

26
Q

HOW does one apply for summary judgement?

A

Issue the Application Notice, Evidence & Draft Order with fee at court.

  1. Prepare application notice – Form N244 – stating what order and why (CPR 23.6)
    - Identify concisely any point of law on which the applicant relies & state that the application is made because the applicant believes that the respondent has no real prospect of succeeding
    - Include a statement that it is an application for summary judgment under Part 24
  2. Supporting evidence – must be supported by written evidence setting out the facts justifying the relief sought. Witness’ written evidence.
    i. Part C of application notice
    ii. Referring to existing statements of case
    iii. Witness statement or affidavit

a. Draft Order – what remedy/costs order is sought

27
Q

What are the 3 possible outcomes of a Summary Judgement hearing?

A
  1. Obtain judgement
  2. Conditional order
  3. Dismissal of application
28
Q

OUTCOMES OF A SUMMARY JUDGEMENT HEARING: what happens if you:

OBTAIN JUDEGMENT

A
  • Judgment on a claim (claim is over) or particular issue (in part) – if C applies
  • Dismissal of claim (as if claim never existed) or particular issue – if D applies
29
Q

OUTCOMES OF A SUMMARY JUDGEMENT HEARING: what happens if you:

Get a CONDITIONAL ORDER

A
  • Claim continues but not wholly convinced – certain conditions imposed e.g. ordering a sum of money to be paid by one party to other.
30
Q

OUTCOMES OF A SUMMARY JUDGEMENT HEARING: what happens if you:

DISMISSAL OF APPLICATION

A
  • Claim continues & judge makes costs order.

Civil Litigation (9 decks)

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