Statements of case and interim applications

Question 1

What are statements of case?

Answer 1

The formal documents in which parties set out their respective cases.

They typically include the claim form, particulars of claim and any defences.

Question 2

What further documents can occasionally form a statement of case?

Answer 2

A reply
Counterclaims
Defence to counterclaims
Response to request for further information

Question 3

What are the three key headings on the particulars of claim?

Answer 3

Particulars of claim
Particulars of breach
Particulars of loss and damage

Question 4

What should be included under the ‘particulars of claim’ heading on the particulars of claim? (6)

Answer 4

The status of the parties

Chronological events

Substance of the matter / legal elements that underpin their case

Express or implied terms relied upon

How the contract was specifically breached

Question 5

What should be included on the ‘particulars of breach’ heading on the particulars of claim?

Answer 5

Factual consequences resulting from defendant’s actions

The damage and loss alleged

Question 6

What should be included in the ‘particulars of loss and damage’ heading on the particulars of claim?

Answer 6

Itemised loss and how it is calculated

The interest expected on the sum outstanding

Question 7

How can interest be claimed on damages?

Answer 7

The contract any specify a rate which is applied to the outstanding sum

Interest may be claimed under the Late Payment of Commercial Debts (Interest) Acts - this is usually 8% above the base rate of the Bank of England on the date the debt became due.

The court has discretion to award under statute (Senior Courts Act - High Court, County Courts Act - County Court)

Question 8

What should be included on the particulars of claim for specified claims in terms of interest?

Answer 8

The interest must be precisely calculated as a lump sum for the amount that has accrued from breach of contract up to the date of issue of the proceedings plus a daily rate.

Question 9

What is the purpose of a defence?

Answer 9

To answer the claim to highlight which issues are in dispute.

In each allegation they must state whether they are denied, not admitted or admitted.

Question 10

What must a defendant include in their defence when denying an allegation?

Answer 10

Their reasons for doing so

Their own version of events

Question 11

When would a defendant not admit the allegation on a defence?

Answer 11

When the defendant has no knowledge of the particular matter alleged.

Question 12

Who bears the burden of proof if a defendant alleges a limitation period has expired?

Answer 12

The defendant must raise this in their defence and the claimant must then prove that it is not time-barred.

Question 13

When does a burden of proof fall on a defendant?

Answer 13

In contributory negligence claims

Failure by a claimant to mitigate their loss

Question 14

When can an additional claim be made by a defendant?

Answer 14

For an indemnity from another party to the defendant

For a contribution from another party to the defendanf

Question 15

How long does a claimant have to dispute a counterclaim?

Answer 15

14 days
28 days if agreed with the parties

Question 16

What happens if a claimant fails to file a defence to a defendant’s counterclaim?

Answer 16

The defendant can apply for a default judgment.

Question 17

When can amends to a statement of case be made before a limitation period expires?

Answer 17

After filing/before service - amends can be made at any time

After filing and service - amends can be made with written consent of the parties or in the court’s discretion

Question 18

When can amends be made to a statement of case when the limitation period has expired?

Answer 18

If they are adding/substituting a new claimant

To correct a genuine mistake as to to the name of the party

To alter capacity in which a party claims

Question 19

When can a party request further information?

Answer 19

At any time when a statement of case fails to set out the case precisely enough.

Question 20

How should a response be made to a request for further information?

Answer 20

In writing

Dated

Signed by the party or their legal representative

Served on all parties, filed with the court and verified by a statement of truth

Question 21

What happens if a request for further information is not responded to?

Answer 21

An application may be made to the court to grant an order if the request is confined to reasonably necessary and proportionate matters to enable the applicant to prepare their case or understand the case against them.

Question 22

What are interim applications?

Answer 22

Applications made after litigation starts but before the trial.

Question 23

What interim applications can be made to ensure compliance with procedural matters?

Answer 23

Challenging the court’s jurisdiction

Permission to amend a statement of case

Permission to serve a claim form out of the jurisdiction

Question 24

What interim applications can be made to request more time?

Answer 24

To serve a claim form or defence

To serve a list of documents

Question 25

What interim applications can be made to assist in preparation for trial?

Answer 25

Requiring a reply to a Part 18 request for further information

Seeking disclosure of documents

Question 26

What interim application can be made to ask the court to consider penalties?

Answer 26

Applying for sanctions for failing to meet a deadline

Applying for relief from a sanction.

Question 27

What is an application notice?

Answer 27

A notice stating what is being sought and why which is sent to the other parties.

Question 28

When should an application notice be served on the opponent?

Answer 28

3 clear days (i.e. excluding the date of service, hearing, weekends and bank holidays)

Question 29

What should a party apply for where they have reached an agreement on an order?

Answer 29

A consent order

Question 30

When can consent orders be made without notice?

Answer 30

In exceptional urgency

When it would be best achieved by making an order without notice e.g. freezing financial assets

Question 31

What documents should be served on the respondent if an application is made without notice?

Answer 31

The court order
The application notice
Any supporting evidence

Question 32

How long does a claimant have to set aside or vary an application without notice?

Answer 32

Within seven days of the service of the order upon them

Question 33

In what format are interim applications typically heard?

Answer 33

Of one hour or less - telephone

Exceptions may be made where an application is made without giving notice to the other party

Question 34

What type of costs orders can be made?

Answer 34

Claimant/Defendant’s costs - the party named in the order is entitled to their costs within 14 days

Costs in the case - the ultimate loser will pay these once the winner is decided

No order as to costs - each party to bear their own costs

Question 35

What is a summary judgment?

Answer 35

Where a defendant files a weak defence and the claimant can bring that matter to an early conclusion (or vice versa).

Question 36

When will a court consider granting a summary judgment?

Answer 36

If the party has no real prospect of succeeding on the claim, defence or issue

There is no compelling reason why the case or issue should be disposed of at a trial

Question 37

When can an application for summary judgment be made?

Answer 37

At any time.

Question 38

How much notice should the respondent be given of an application for summary judgment?

Answer 38

14 days notice of the hearing

They must file and serve any written evidence at least 7 days before the hearing.

Question 39

What possible orders can a court make in response to an application for summary judgment?

Answer 39

Approve judgment

Strike out/dismiss the claim

Dismiss application for summary judgment

A conditional order

Question 40

When may a conditional order be granted by the court in respect of a summary judgment?

Answer 40

Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order.

Question 41

What are interim injunctions?

Answer 41

An injunction granted prior to the trial.

Question 42

Who may apply for an interim injunction?

Answer 42

Any party at any time after proceedings have commenced or prior to proceedings in exceptional circumstances.

Question 43

What is a breach of injunction known as?

Answer 43

Contempt of court

Question 44

When considering whether to grant an interim injunction, what guidelines will the court refer to? (4)

Answer 44

There is a serious question to be tried

Damages are an adequate remedy for either side e.g. damages would not be an adequate remedy where a defendant’s farm is being closed.

The balance of convenience lies in favour of granting or refusing the injunction

Whether there are any special factors

Question 45

What is the cross-undertaking in an interim application?

Answer 45

An applicant must undertake to pay the court any damages the respondent sustains if it transpires that the injunction should not have been granted.

Question 46

When can an interim injunction be granted without notice?

Answer 46

Freezing injunctions - refrains a party from removing assets from the jurisdiction

Search orders - compels the respondent to allow their premises to be searched by the applicant.

Question 47

Where should an interim injunction application be made?

Answer 47

To a High Court judge with supporting evidence of an affidavit

Question 48

What is an interim payment?

Answer 48

Payment on account of any damages, debt or sums prior to the trial.

Question 49

When can an interim payment application be made?

Answer 49

Until after the period for filing the acknowledgement of service.

Question 50

Can a party make more than one interim application?

Answer 50

Yes

Question 51

When should an application notice be served for an interim payment application?

Answer 51

At least 14 days before the hearing date with evidence.

Question 52

What evidence should be provided with an interim application?

Answer 52

The amount requested and what it will be used for

The sum of money likely awarded at final judgment

Reasons for believing the CPR grounds are satisfied

Question 53

How long does a respondent have to file evidence they wish to rely on for an interim payment application hearing?

Answer 53

At least seven days before the hearing.

Question 54

What are the grounds for an interim payment application to be granted?

Answer 54

Defendant has admitted liability

Claimant has obtained a judgment

The court is satisfied that if the case went to trial that the claimant would obtain judgment (but the bar is high here)