Statements of case and interim applications

Question 1

Statements of case - Definition

Answer 1

Statements of case are the formal documents in which the parties concisely set out their respective cases. 1st - the claim form and particulars of claim start the process. 2nd - a defence will be filed by the defendant

Question 2

Claim form

Answer 2

In most instances the facts are likely to be too complex to fit into the claim form so a separate particulars of claim will be required. The precise contents of the particulars of claim will depend upon the relevant cause of action - contract or negligence

Question 3

Particulars of claim - What it must include

Answer 3

The document must include:
- A concise statement of the facts on which the claimant relies. This means that it must outline all the facts giving rise to the dispute to demonstrate the required elements of the cause of action on which the claim is based
- If the claimant is seeking interest a statement to that effect and the details

Question 4

Particulars of claim - Claim based on breach of contract - What it should deal with

Answer 4

The particulars of claim should deal with the essential material facts that will establish the cause of action.

Question 5

Particulars of claim - Claim based on breach of contract - Layout

Answer 5

1) The status of the parties
2) Chronological events explaining what has occurred
3) Existence of contract
4) Terms - express and implied
5) Breach alleged and particularised
6) Factual consequences - what happened as a result of what the defendant did wrong
7) Damage and loss alleged and particularised - loss must be alleged and then they should be itemised
8) Interest - Where the remedy sought by the claimant is either damages or the repayment of a debt the court may award interest on the sum outstanding
9) Summary of relief
10) Statement of truth

Question 6

Particulars of claim - Claim based on Negligence

Answer 6

Will be approached in a similar way although the content will differ to reflect the legal elements of duty of care, breach of duty, causation and loss

Question 7

Defence - Purpose

Answer 7

The purpose of defence - sets out the defendant’s answer to the claim with the aim being to highlight the issues are in dispute

Question 8

Defence - What the document should state

Answer 8

The defence must state, for each allegation whether it is:
- Denied - if you deny you have to prove it
- Not admitted - no knowledge or don’t have circumstances of the breach
- Admitted

Question 9

Defence - Denies allegation

Answer 9

Where a defendant denies an allegation they must state:
- Their reasons for doing so
- Their own version of events if different from that given by the claimant

Question 10

Part 20 claims - Definition

Answer 10

A defendant may wish to make their own claim against a claimant or to bring another party into the proceedings - this is governed by Part 20

Question 11

Part 20 claims - Counterclaim and defence

Answer 11

A defence and counterclaim is where a defence and a new claim are set out in a new document - document is then sub-divided into 2 sections with the defence outlined at the beginning and the counterclaim following on immediately thereafter. Rather than repeat aspects that have already been included in the statements of case, the counterclaim will refer back to the defence. Counterclaim will set out allegations of loss resulting from the claimants’ breach.

Question 12

Part 20 claims - Additional claims and indemnity

Answer 12

Part 20 also applies to additional claims made by a defendant for a contribution or indemnity or some other remedy against nay person whether or not they are already a party - common where a defendant wishes to pass the blame either in whole or in part onto a 3rd party.

Question 13

Reply to defence

Answer 13

Under no obligation to reply

Question 14

Defence to counterclaim (Part 20)

Answer 14

Must file within 14 days

Question 15

Amendments to statements of case - Prior to expiry of limitation period

Answer 15

Amendments may be made at any time but only with the consent of all of the parties or the permission of the court

Question 16

Amendments to statements of case - After the expiry of limitation period

Answer 16

Court may allow an amendment only in the following circumstances:
- To add or substitute a new claim
- To correct a mistake as to the name of a party
- To alter the capacity in which a party claims

Question 17

Requests for further information - Part 18

Answer 17

The rule provides that at any time either the court or the parties may request further info. and if successful a party will be ordered to:
- Clarify any matter that is in dispute
- Give additional info. in relation to any such matter

Question 18

Requests for further information - Part 18 - Procedure for making/responding to a Part 18

Answer 18

The procedure for making/responding to part 18:
- If either party requires further info. they must serve a written request on the other party allowing a reasonable time for the response
- A 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
- Requests must be made as far as possible in a single comprehensive document

Question 19

Requests for further information - Part 18 - Responding to a Part 18 claim

Answer 19

Once the request has been received the other party must deal with the issues raised. The response must be in writing, dated and signed by the party or their solicitor. It must be served on all parties, filed with the court and verified by a statement of truth

Question 20

Interim applications - Definition

Answer 20

Applications for orders or directions that are made before the trial or substantive hearing

Question 21

Interim applications - Procedure

Answer 21

The party who is applying must complete an application notice and form N244 should be used. It must state what order is being sought and why, set out the facts the party is relying on in support of or for opposing the application. It must be served at least 3 clear days before the court hearing.

Question 22

Interim applications - Procedure - General rule

Answer 22

The general rule is that applications must be made on notice to the other party. This ensures that the opponent is aware of the application so they may file evidence in response and arrange for attendance at the hearing

Question 23

Interim applications - Procedure - Exceptions

Answer 23

1) There is exceptional urgency
2) The overriding objective of the CPR would be best achieved by making an order without notice

Question 24

Interim applications - Procedure - Without notice

Answer 24

As soon as practicable after the order is issued they should send copies of these documents:
- The court order
- The application notice
- Any supporting evidence
The respondent may apply to set aside or vary the order within 7 days of it being granted

Question 25

Interim costs

Answer 25

The general costs rule - applies with the loser paying the winner’s costs. However the type of costs order will depend upon the nature of the application and interim costs orders usually reflect to a large extent the conduct of the parties

Question 26

Summary judgment - Definition

Answer 26

To enable a claimant to bring the matter to an early conclusion they can bring a summary judgment under Part 24.

Question 27

Summary judgment - When will the court give one?

Answer 27

If it considers that:
- The claimant has no real prospect of succeeding on the claim
- The defendant has no real prospect of successfully defending the claim
- There is no other compelling reason why the case should be disposed of at trial

Question 28

Summary judgment - What do they have ti prove?

Answer 28

A claimant applicant has to prove both that the defendant has no real prospect of successfully defending the claim and that there is no other compelling reason why the matter should proceed to trial.

Question 29

Summary judgment - What does the defendant need to prove?

Answer 29

A defendant respondent need only succeed in preventing the claimant from proving one aspect to ensure the dismissal of the application for summary judgment

Question 30

Summary judgment - What is needed

Answer 30

• Points of law and/or evidence
• To allow time for further investigation
• Complex or technical evidence is required
• Disputed issue requires oral evidence

Question 31

Summary judgment - Procedure

Answer 31

• Applicant files and serves form N244 and witness statement at least 14 days before the hearing
• Respondent files and serves own evidence at least 7 days before the hearing
• Applicant may file and serve further evidence at least 3 days before the hearing

Question 32

Summary judgment - Orders - Claimant’s application granted

Answer 32

• D pays C’s costs
• Judgment entered and proceedings end subject to enforcement

Question 33

Summary judgment - Orders - Defendant’s application granted

Answer 33

• C pays D’s costs
• Claim dismissed and proceedings end

Question 34

Summary judgment - Orders - Application dismissed

Answer 34

• Loser pays winner’s costs
• Proceedings continue

Question 35

Summary judgment - Orders - Conditional order

Answer 35

• Costs in the case
• Case proceeds if condition is satisfied

Question 36

Interim injunctions - Definition

Answer 36

They are a discretionary remedy and may only be granted when damages are not an adequate remedy for the applicant. Aim is to maint the status quo until the trial.

Question 37

Interim injunctions - General position

Answer 37

Generally they will be used to prevent the defendant from taking certain steps such as soliciting customers of the claimant but they can also order a party to take action e.g to stop committing a nuisance

Question 38

Interim injunctions - Guidelines

Answer 38

When the court hears an application for an interim injunction it does not know all the facts and so to assist in making the correct decision judges refer to certain guidelines. When deciding whether to grant one the court will determine whether:
- There is a serious question to be tired
- Damages are an adequate remedy for either side
- The balance of convenience lies in favour of granting or refusing the injunction
- Whether there are any special factors

Question 39

Interim injunctions - What happens if one is granted?

Answer 39

If an interim injunction is granted the applicant must undertake to the court to pay any damages that the respondent sustains by reason of the injunction if it subsequently transpires that the injunction ought not to have been granted

Question 40

Interim injunctions - Procedure

Answer 40

The party who seeks the order must apply by way of an application notice with evidence in support e.g witness statement. Usually made on notice. However the court can grant one without notice if there are good reasons for doing so.

Question 41

Interim payments - Definition

Answer 41

An advance payment on account of any damages, debts or other sum that a defendant may be held liable to pay. The interim payment procedure enables a claimant who has a strong case on liability to avoid the financial hardship and/or inconvenience that might otherwise be suffered because of any delay during the period between the start of the claim and its final determination

Question 42

Interim payments - Procedure

Answer 42

An application notice for an interim payment must be served at least 14 days before the hearing date. Evidence must be provided and should set out:
- The amount requested and what it will be used for
- The amount of the sum of money that is likely to be awarded at final judgment
- The reasons for believing that the grounds required by the CPR are satisfied

Question 43

Interim payments - Grounds

Answer 43

The grounds which must be satisfied before the court will make an interim payment are:
- The defendant has admittedf liability
- The claimant has obtained a judgment against the defendant for damages to be assessed or for a sum of money
- The court is satisfied that if the case went to trial the claimant would obtain judgment for a substantial amount of money

Question 44

Interim payments - Courts’ discretion

Answer 44

The court has discretion in relation to 2 Qs:
- Should an order for an interim payment be made? If the issues are complicated or difficult questions of law arise the court may decide not to order an interim payment at all
- If yes should the amount be? If the applicant succeeds, the court cannot order a sum of more than a reasonable proportion of the likely amount of the final judgment and must take into account contributory negligence and any counterclaim. In other words, the court will try and calculate what figure is indisputably due to the claimant and then determine what the defendant is able to pay