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FLK 1 DISPUTE RESOLUTION > TB - Interim Applications > Flashcards

TB - Interim Applications Flashcards

1
Q

what is an interim application

A

an interim application is made to the court by one of the parties to litigation after a claim has been commenced but before it has reached trial

this is why they’re called interim - made during the intervening time between commencement and trial)

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2
Q

interim applications can only be made if the defendant has prior notice of the hearing and is able to defend themselves - true or false

A

false - certain applications can be made without notice which means the respondent doesn’t know about them until the court has made a decision on the application

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3
Q

what is the purpose of applying for an order for summary judgement

A

it allows a party who’s on the receiving end of a weak claim or defence to request the court to order that either part of or the whole of the the relevant statement of case be disposed of

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4
Q

what are the guidelines that the court considers when deciding whether to grant an application for an interim injunction

A

whether there’s a serious issue to be tried, whether damages are an adequate remedy, where the balance of convenience lies and whether there are any other special factors

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5
Q

if the applicant requests it, the court will always allow an application to be considered without notice - true or false

A

false - the court will only hear an application without notice in exceptional circumstances

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6
Q

what is an applicant requesting in an interim application

A

the applicant is requesting that the court either makes an order or issues directions

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7
Q

who is the respondent in an interim application

A

the party against whom the application is made

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8
Q

NOTE

A

the sqe spec requires you to know procedure for making interim applications, as well as purpose, procedure and evidence required to make specific applications, such as for summary judgement, interim payments and interim injunctions

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9
Q

key term - applicant

A

the party who makes an interim application during litigation proceedings

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10
Q

key term - respondent

A

the party against whom the interim application is made

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11
Q

in order to make an interim application, what documents must the applicant prepare and file with the court

A
  • application form (N244)
  • draft order
  • evidence
  • skeleton argument only if the claim is in the high court
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12
Q

what does an application for N244 request the court to do

A

it requests the court to make an order or direction and specifies what type of order or direction the applicant would like the court to make

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13
Q

what is a draft order

A

a draft of the order the applicant would like the court to make

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14
Q

the applicant is required to give evidence to the court - what is this evidence generally in the form of

A

in the form of a witness statement

this should include all details of why the order or direction is being requested and should include evidence to support the facts that are being relied upon

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15
Q

what is a skeleton argument

A

a written doc provided to the court in advance of a hearing which summarises the factual and legal issues involved, the arguments that are being submitted in relation to those issues, and any legal authorities that the party will be relying on

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16
Q

what happens once the applicant has filed the relevant documents depends on…

A

whether the application has been made with notice or without notice

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17
Q

most interim applications are made with notice - true or false

A

true

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18
Q

what are with notice applications

A

applications where the applicant gives notice of the hearing to the respondent prior to the relevant court hearing

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19
Q

what are without notice applications

A

applications where the applicant doesn’t inform the respondent about the application or hearing until the court has already made an order

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20
Q

once the applicant has filed the relevant docs with the court, what will the court issue

A

the court will issue the application and send out a notice to the parties informing them of the time and date of the hearing

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21
Q

what happens once the court has issued the application and sent a notice to the parties informing them of the time and date of hearing

A
  • the application notice, draft order and evidence (including witness statement) must then be serves on the respondent at least three days before the hearing date
  • the respondent must then serve any evidence they wish to rely on asap. no set timescale for respondent to do this unless court specifies
  • applicant is then permitted to serve any evidence in response to the respondents evidence if they wish to do so
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22
Q

what happens once all the steps above have been completed (applicant is permitted to serve any evidence in response to respondents evidence if they wish to do so) - the matter will proceed to a hearing where the court will decide …

A

the matter will then proceed to a hearing, where the court will decide whether to grant the application and make the order or direction being sought by the applicant or to reject the application

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23
Q

without notice applications are only allowed in exceptional circumstances where urgency requires it - true or false

A

true

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24
Q

what are the most common without notice interim applications

A

freezing injunctions

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25
Q

the most common without notice interim applications are freezing injunctions where an applicant has genuine grounds to believe..

A

that a respondent will deliberately dispose of their assets to avoid paying a debt

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26
Q

in such cases (without notice applications - freezing injunctions) - why would giving the respondent notice defeat the point of the application

A

because it would allow the respondent time to dispose of their assets before the hearing

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27
Q

in a without notice application, the applicant must not only explain to the court in great detail, and with evidence why notice wasn’t given - what else must they provide the court with

A

a witness statement setting out all of the facts whether they’re favourable to the application or not

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28
Q

the court will scrutinise the info and evidence they receive carefully before making an order - true or false

A

true because the respondent doesn’t have the opportunity to put forward their own arguments

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29
Q

if the court grants the interim application and makes an order - what must the applicant serve on the respondent

A

the applicant must serve on the respondent the application notice, evidence, court order and a brief statement explaining the respondents right to have the order set aside within seven days of it being granted

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30
Q

the court may set a date for the matter to return to court for a full hearing with both parties, ordering that the injunction remains in place until the date of the next hearing - true or false

A

true

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31
Q

who can make an application for summary judgement and what effect does this have if successful

A

it can be made by either party and if successful has the effect of concluding a part of or an entire case before trial

32
Q

purpose of summary judgement - summary judgement under part 24 of the CPR allows a party who is on the receiving end of a weak claim or defence to request the court to order that …

A

either part of or the whole of the relevant statement of case be disposed of

33
Q

if an application for summary judgement is successful, will the party against whom the order is made be allowed to continue with the part of their claim or defence that the order for summary judgement relates to

A

no they will not be allowed to continue

34
Q

PRACTICE EXAMPLE

A
35
Q

which grounds does CPR 24.2 set out

A

the grounds that the applicant for summary judgement must meet to exceed

36
Q

ground - the respondent has no real prospect of succeeding with the claim or defence - is this a high standard of meet

A

yes

no real prospect essentially means that the respondents prospect of success must be close to imaginary

even if it’s unlikely that the respondent will be successful, this will be enough for the court to refuse an application for summary judgement and allow the proceedings to continue

37
Q

ground - there must be no other compelling reason why the claim should proceed to trial - what can compelling reasons include

A
  • complex facts (court will not allow summary judgement where the facts of the claim are overly complex or technical and require a full hearing)
  • the defendant requires more time to investigate the claim made
  • expert or further witness evidence is required to make a proper determination on the claim
38
Q

EXAM WARNING

A

to be successful in an application for summary judgement, the applicant must meet both of the criteria above (respondent has no real prospect of successing with the claim or defence and there must be no other compelling reason why the claim should proceed to trial)

39
Q

will meeting only one of the criteria of the grounds that must be met for summary judgement to succeed, be sufficient for the court to make an order in the applicants favour

A

no both criteria must be met

40
Q

what is the first step in the procedure for an application for summary judgement

A

the applicant prepares and files an application notice (form N244) requesting an order for summary judgement to be made with an accompanying witness statement explaining why they believe the two stage test laid out in part 24 is met

41
Q

what is the next step for an application of summary judgement after the applicant has prepared and filed an application notice

A

the respondent must then be given at least 14 days notice of the hearing date and is required to serve any written evidence at leats 7 days before the hearing

the applicant can then file and serve any further written evidence (usually evidence that shows the respondents position to be factually or legally incorrect) no later than three days before the hearing

42
Q

the applicant can then file and serve any further written evidence (usually evidence that shows the respondents position to be factually or legally incorrect) no later than how many days before the hearing

A

no later than three days before the hearing

43
Q

following the hearing, what are the different orders that the court can make

A
  • judgement on the claim
  • dismissal of the claim
  • dismissal of the application
  • conditional order
  • costs order
44
Q

order - judgement on the claim

A

this is where the claimant has brought the application against the defendant - the court gives judgement in the claimants favour as they have met both of the part 24 criteria - the claim will therefore not proceed to trial

45
Q

order - dismissal of the claim

who brings the application against who?
in which party’s favour does the court give the judgement?
whose claim gets dismissed?

A
  • defendant has brought application against claimant
  • court gives judgement in defendants favour
  • court dismisses the claimants claim
46
Q

order - conditional order

A

the court orders that the claim can continue but subject to a particular condition being met

for example - where the claimant has brought an application on the basis that the defendants defence has no real prospect of success and there’s no other compelling reason why the claim should proceed to trial, the defendant may have persuaded the court that the prospects of their success could be more than imaginary at hearing. if this is the case, the court will order that the claim can continue but conditional on the defendant filing a proper defence setting out their legal and factual position within 14 days of the date of the hearing

47
Q

court order - costs order - what are the four different types of costs oder that can be made by the court

A

1) one party pays the other party’s costs of the application

2) that costs be in the case

3) no order as to costs

4) wasted costs order

48
Q

one party pays the other partys costs of the application

A

this will usually be the losing party being ordered to pay the successful party’s costs

49
Q

that costs be in the case

A

this means the decision on costs is deferred until a later date

50
Q

no order as to costs

A

this means each party will pay their own costs of the application - generally used where the applicant was justified in bringing the application and the defendant has been able to justifiably defend it (ie there’s no clear winner or where the court is equally critical of both sides)

51
Q

wasted costs order

A

this is where the legal reps have to pay the legal costs due to their own poor levels of conduct in dealing with the application

52
Q

does the court need to give the applicant permission to make an application for summary judgement

A

no unless it’s being made by the claimant prior to the defendant filing an acknowledgement of service and defence

53
Q

what is an interim payment

A

an amount paid by a defendant to a claimant on account before the court has made its final decision at trial

enables defendant to make a payment to the claimant earlier than trial, which is then offset against the amount the claimant is awarded

54
Q

when does an interim payment typically happen

A

where the defendant admits liability for the claim (ie in personal injury claims) and understands that they will need to pay the claimant some money but the amount of the claim is still to be determined by the court

55
Q

interim payments can be made on a voluntary basis by agreement between the claimant and defendant - true or false

A

true

56
Q

when should a claimant consider making an application for the court to order an interim payment to be made by the defendant

A

where the defendant has refused to make a voluntary interim payment

57
Q

which part of the CPR can you find the grounds for an application for an interim payment

A

part 25 of the CPR

58
Q

the claimant must prove one of the following grounds for their application to be sucessful

A
  • the defendant has admitted liability to pay damages or some other sum of money to the claimant
  • the claimant has obtained judgement against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed
  • the court is satisfied that if the claim went to trial, the claimant would obtain judgement for a substantial amount of money (other than costs) against the defendant from whom they’re seeking an order for an interim payment
59
Q

exam warning

A

this ground is v difficult to prove - the court is satisfied that if the claim went to trial, the claimant would obtain judgement for a substantial amount of money (other than costs) against the defendant from whom they’re seeking an order for an interim payment

if an exam q arises where asked about the likelihood of an application for an interim payment succeeding where the claimant is applying based on this ground, it’s unlikely that the claimant will be successful, unless they have a significant amount of evidence to show they will win the case and that the damages they will be awarded will be substantial

60
Q

what is the first step in the procedure for making an application for an interim payment

A

the applicant prepares and files an application notice (form N244) requesting an order for an interim payment to be made with an accompanying witness statement explaining why they believe the grounds laid out in part 25 are met

61
Q

what is the next step of making an application for interim payment after the applicant has prepares and filed an application notice requesting an order for payment to be made - how many days notice must the respondent be given

A

the respondent must then be given at least 14 days notice of the hearing date and is required to serve any written evidence at least seven days before the hearing

62
Q

what is the next step of making an application for interim payment after the respondent has been given 14 days notice of the hearing date and served any written evidence

A

the applicant can then file and serve any further written evidence (this is usually evidence that shows the respondents position to be factually or legally incorrect no later than three days before the hearing

63
Q

once the court has heard the application what will they decide

A

whether to order that the defendant makes an interim payment to the claimant and if so how much - the court will also make one of the costs orders mentioned above

64
Q

what is an interim injunction

A

an order that requires a party to either do something specific or refrain from doing something specific pending a full trial taking place

(sqe requires you to know the guidelines that are applied by the court when deciding whether to grant an interim injunction generally)

65
Q

what are the guidelines applied by the court when deciding to grant an application for an interim injunction

A
  • is there a serious issue to be tried
  • would damages be an adequate remedy
  • where does the balance of convenience lie
  • are there any other special factors
66
Q

guideline applied by the court when deciding to grant an application for an interim injunction - is there a serious issue to be tried - what does the claimant need to satisfy the court with

A

the claimant needs to satisfy the court that the claim isn’t imaginary, frivolous or vexatious (ie where the action is being brought only to harass the defendant and doesn’t have a legal or factual basis to it)

67
Q

guideline applied by the court when deciding to grant an application for an interim injunction - would damages be an adequate remedy - what does the court need to consider

A

the court needs to consider whether damages alone would be a sufficient remedy for the claimant and if awarded whether the respondent would be able to pay those damages

68
Q

guideline applied by the court when deciding to grant an application for an interim injunction - where does the balance of convenience lie - what must the court consider

A

the court must consider which party would suffer the biggest inconvenience - the claimant if the injunction wasn’t granted or the defendant if the injunction was granted

69
Q

guideline applied by the court when deciding to grant an application for an interim injunction - are there any other special factors

A

the court looks at whether the facts of the case point to any particular factors that would either support granting an application for an injunction or refusing one

70
Q

what is the procedure for making an application for an interim injunction dependent on

A

whether it’s made with notice or without notice

71
Q

once the court has heard the application, they will decide whether to order that an interim injunction is put in place, if the application is on notice and the court awards the injunction - when will the injunction last till

A

the injunction will last until trial

72
Q

if the application is without notice, the court will either//

A
  • grant the injunction temporarily but list the matter for a full hearing with both parties present - this allows D the opportunity to argue that the injunction should be set aside
  • grant the injunction but inform D they can make an application to set aside the order within seven days of the order being made
73
Q

once the court has heard the application, they will decide whether to order that an interim injunction is put in place - they will also make one of the following costs orders ..

A
  • judgment on the claim
  • dismissal of the claim
  • dismissal of the application
  • conditional order
  • costs order
74
Q

what are the two types of interim injunctions

A
  • freezing injunction
  • search order
75
Q

what is a freezing injunction

A

an order that prevents the respondent of the application from disposing of their assets before trial - a respondent would usually do this if they were trying to protect their wealth and assets from being paid or transferred to the applicant in the event of a successful claim

the applicant must show that there’s a real risk of the defendant dissipating their assets

76
Q

what is a search order

A

an order that allows an applicant to enter the premises of the respondent to search for and take copies of evidence required for a court case

FLK 1 DISPUTE RESOLUTION (11 decks)

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