sum judg Flashcards
what are interim applications
applications for orders/ directions made to the court in the ‘interim’ period between commencement of proceedings (issuing CF) and trial (BUT some interim remedies can be applied for before commencement of proceedings)
when interim app
- usually if glitch in proceedings
E.g.
- deadline missed/require extension of time
- amend statement of case
- require other side to provide clarification
- specific disclosure of doc
- permission to rely on EE
examples of interim apps
- security for costs
- interim injunctions
- freezing injunctions
- summary judgement
all interim apps give rise to either:
ONE - directions, or
TWO - interim orders
interim orders do not usually finally determine the proceedings (summary judgement application under CPR 24 = exception) it is simply an order made by court before matter is heard at trial
evidence u need SFC
C has no money
evidence you need freezing injunction
- Dissipation of assets (esp. out of jurisdiction)
- Selling anything at undervalue
- DPP against directors (or any other proceedings)
evidence you need summary judgement
- case is strong (don’t think other side has a case)
with notice interim hearing
- Much more common than without notice
- Formal notice given to other side (i.e. sent R a copy of application notice and evidence in advance)
- Both parties attend the hearing
- Evidence given in written form
- Hearings take place in public normally
[Can be private if certain factors are present (CPR 39.2(3)) but court ultimately decides if it is in the interests of justice for the hearing to be held in private]
without notice interim application
- Only one party goes to court (other party not heard)
- Potentially unfair so only used in exceptional cases (or for purely administrative matters)
- Procedural safeguards used to redress potential unfairness (e.g. duty to give full and fair disclosure of relevant matters)
- Can only be made if good reasons for not giving notice
when is without notice hearing used?
- matter urgent
- object of order would be defeated by giving notice (e.g. injunction/search order - notice would alert respondent of intention before app can be determined)
- other party not yet on court record (proceedings not served)
- insufficient time to to provide formal notice because hearing date has already been fixed (23A PD 2.10)
what happens after interim without hearing app?
- Respondent will receive a copy of the order made by the court
- Applicant must serve on R the application notice and evidence (CPR 23.9) which must set out his/her right to apply to court to have order set aside (CPR 23.10)
PROCEDURE - MAKING WITH NOTICE APP , when and where
WHEN?
- as early as possible (when it becomes apparent it is necessary), OO, 23A PD 2.7
- if poss, notify in DQ
- bunch apps if possible
WHERE?
- court where main claim is being dealt with
procedure for making interim app with notice
- prepare docs (application notice, evidence, draft order, bundle of docs, skeleton arguments)
- issue to court AN, supporting docs, fee, 3 copies minimum (each party, one for court)
- serve on R application notice, docs, evidence not less than 3 clear days before app is to be heard
- R’s evidence in reply (ASAP)
- A’s evidence in reply (ASAP)
- statement of costs
- hearing/order
summary judgement
- issue at court (AN, draft order, evidence)
- service on R (14 days before)
- R file and serve evidence (7 days before)
- A file and serve evidence in response (3 days before)
- statement of costs (24 hours before)
- interim hearing
sum j exam tip
ALWAYS (1) start with definition, (2) then state the test for summary judgement word for word (CPR 24.2)
definition of sum J
Summary judgement allows court to decide claim or particular issue without the need for a full trial, thereby filtering strong cases from weak cases
- Allows court to deal with cases/issues proportionality and expeditiously (overriding objective)
- Available in most types of proceedings (but exceptions – see CPR 24.3)
can be based on
- point of law
- evidence
- both
who can apply for sum J and when?
C (D has no defence) - after D indicates intention to defend (AOS or defence)
D (C has no case) - anytime after CF issued
Tactically - wait for POC/defence (to see if other side have a case) and before DQ to avoid unnecessary costs
test for sum J
ONE – Claimant has no real prospect of succeeding the claim/issue OR
D has no real prospect of successfully defending the claim
TWO – there is no other compelling reason why the case/issue should be disposed of at trial
Claimant has no real prospect of succeeding the claim/issue OR
D has no real prospect of successfully defending the claim
low threshold - R just has to show some prospect
Case may have real prospect even if improbable
no real prospect if
- claim has no substance
- statement of case contradicts all evidence documents on which SOC is based
Swain v Hillman
(Lord Woolf) – real means realistic, as opposed to fanciful, prospect of success (it does not mean real and substantial)
Also, hearing is NOT a mini trial (BUT this doesn’t mean court must accept everything said by the parties – court must look at merits to the extent necessary to determine whether there is a real prospect of success)
• International Finance Corporation v Utexafrica SPRL [2001]
R does not have to show case will probably succeed BUT there must be a real prospect of defence/claim succeeding
(real means better than merely arguable)
no other compelling reason why the case/issue should be disposed of at trial
Examples of compelling reasons: • Expert evidence required • Case is highly complex • significant dispute on the facts • D needs more time to investigate • Witness testimony must be tested and cross-examined • Value of the claim • Right to jury (e.g. defamation) • Difficult questions of law • Questions of foreign law • Multi-party litigation • Unjust to terminate case before scrutiny of key documents
Not a compelling reason: Set off or counterclaim (in that case, court will likely give summary judgement but state it is not enforceable until counterclaim/set off is heard)
docs for sum j
same as other interim apps (AN, draft order, evidence) AND:
Application notice must contain:
- Statement that it is an application for summary judgement under Part 24
- Additional information (24 PD 2(2))
- specifically direct R’s attention according to 24 PD 2(5) to CPR 24.5(1)
Application notice or evidence contained or referred to in it or served with it must:
- Concisely identify any point of law/provision in a document on which applicant relies, and/or
- State it is made because applicant believes that on the evidence, R has no real prospect of succeeding on the claim/issue or defending the claim/issue (24 PD 2(3))
- State applicant knows of no other compelling reason why there should be a trial
Evidence must state the points referred to above but usually also gives details of facts AND documentation to show there is no real claim or defence
Judgement on the claim (or part of the claim)
Claimant made application and won
Claim is over
Judge will then go on to assess costs of the whole action
Judgement may be final (if for liquidated sum) or interim (if on liability only)
Dismissal of the claim (CPR 24.2)
Incorrect to say strike out
D made application and won
- It is as if the claim never existed
- Judge will make order for costs to compensate defendant for trouble of defending an unmeritorious claim
Dismissal of the application
Application is lost
- Claim continues
- Judge makes costs order,
- If judge considers application should not have been brought likely applicant ordered to pay respondent’s costs of the hearing
- Respondent will have filed a statement of costs and judge will assess these
dismissal but with a conditional order
- application is lost BUT
- court unsure of R’s case - court will allow claim to continue but not wholly convinced of merits of R’s case
Judge will order claim continue/defendant allowed to defend BUT on certain conditions (failing which, claim is dismissed or defence struck out)
E.g. sum of money paid into court as a condition
E.g. one party to take specified step re: claim/defence
COSTS IN ANY EVENT (can only ask for this if you win) + summary assessment of costs
Party who won application awarded costs at the end of application
(loser in the end only must pay costs not including costs of the interim application which is already accounted for)
Must be paid within 14 days (CPR 44.7)
LIKELY IF COURT criticised THE OTHER SIDE
COSTS IN THE CASE
automatically happens if C bought it and won because case is over
Costs follow the order at trial (CPR 44.2)
If the trial ends here because C wins, D pays all of C’s costs – interim hearing becomes effectively a final hearing
NO ORDER AS TO COSTS (never ask for this)
Each party bears their own costs
In the end, loser only has to pay costs excluding the costs regarding the interim application under 44.2
summary assessment of costs
This occurs at end of hearing if:
ONE – matter disposed of in not more than a day
TWO – ‘costs in any event’ order is made (44 PD 9.2)
Court will put a figure on costs due and it’ll be payable by losing side within 14 days (CPR 44.6(1)a)
Court does this by going through the parties filed and served signed statements of their courts (which is preferably in standard form N260, 44 PD 1.2) – he will reduce any figures he fells are unjustified then make an order for a figure he considers appropriate
act in best interest of client
ask for best court order (for the circumstances)
BUT be careful - if ask for one unreasonably, an inappropriate request might be reflected in a cost order against your client
