Topic 10- Interim Applications, Judgments and Striking Out Flashcards
What is an application notice?
This is a document in which the applicant states their intention to seek a court order
Where must an application for an order be made?
At the court where the claim started
What must an application notice include?
It must state-
- What order the applicant is seeking
- Why the applicant is seeking the order
- Any supporting written evidence
When must an application notice be served?
As soon as practicable after it is filed, and at least 3 days before the court is to deal with the application
When may the court deal with an application for an order without a hearing?
If the parties agree the terms of the order sought
If the parties agree to dispense with a hearing
If the court does not consider a hearing is appropriate
If parties agree to dispense with an order application hearing, can they apply to have it set aside?
They must first get the court’s permission to apply to have the order set aside, varies or stayed
If a party was not served an application notice of a court order, what may they do?
They can apply to have the order set aside or varied
This application must be made within 7 days of the order being served
If any party fails to attend the hearing of an application for a court order, can the court proceed?
Yes, the court may proceed in their absence
If a court dismisses an application that they believe was completely without merit, what must they do?
The court must record that fact, and consider whether it is appropriate to make a civil restraint order
Can an application for an order be made without serving notice?
Yes, but only in certain circumstances
What are the circumstances where a party may make an application without serving notice?
If there is extreme urgency
Where the overriding objective is best furthered by doing so
Consent of all parties
With the permission of the court
When may an informal notice of application be made?
Where there is not enough time to do so, then an informal notice can be made
When can an order for an interim remedy be made?
It can be made at any time, including before proceedings, and after judgment
When may a court grant an interim remedy before proceedings?
If the matter is urgent
OR
If it is in the interests of justice
Also, the defendant cannot apply until they have filed their acknowledgment of service or defence
When may the court grant an interim remedy without notice?
If there are good reasons for not giving notice, eg, extreme urgency
Does an application for interim remedy need to be supported by evidence?
Yes, it must be supported by evidence
When may a hearing for an interim application be heard in private?
Where publicity would defeat the object of the hearing
It would be unjust to the respondent for there to be a hearing
If the hearing involves confidential information
What is the disclosure obligations when making an application without notice?
The applicant must make full and frank disclosure of all matters relevant to the application
If there was not full and frank disclosure in an interim injunction hearing, what may the court do?
They may discharge the injunction
What is the golden rule in applications without notice?
The applicant must identify any material facts, and give full and frank disclosure
What will the court take into account where there has been a breach of the disclosure obligations in an interim application?
The gravity of the breach
The excuse or explanation offered
The severity and duration of the prejudice to the respondent
If the court has discharged an injunction due to non-disclosure, can the court re-grant a fresh injunction?
Yes, but they must look at the harm to the applicant if no injunction is granted, and the breach of the applicant
What is a default judgment?
This is a judgment without trial where a defendant has failed to file an acknowledgement of service or a defence
When may a claimant not obtain a default judgment?
Where their claim is for delivery of goods (subject to Consumer Credit Act, 1974)
OR
Where they use a Part 8 procedure
What conditions must be satisfied for a claimant to obtain default judgment?
The defendant has not filed an acknowledgment of service or defence
The relevant time for doing so has expired
Can a claimant obtain default judgment if they have already applied for summary judgment?
No
How does a claimant obtain default judgment?
They must file a request in a practice form for what they need
Give the def’s date of birth
Can a claimant claim interest on a default judgment?
Yes, they may include the amount of interest in the request
If there are two defendants, and the claimant obtains default judgment against one, what happens to the other defendant?
If the claim can be dealt with separately, the claimant may continue with the proceedings against the other defendant
If they cannot be dealt with separately, the court will not enter default judgment
Can a claimant obtain default judgment for specific performance?
No, they can only obtain default judgment for sum of money, or delivery of goods
When MUST the court set aside default judgment?
If the judgment was wrongly entered, because an AoS or defence has actually been entered
When MAY the court set aside or vary default judgment?
If the defendant has a real prospect of successful defence
OR
There is some other good reason why the judgment should be set aside or varied
Judge has discretion here
Need to also look at the promptness of the defendant in setting aside the judgment
What may the “some other good reason” be for when the default judgment may be set aside by the court?
Where there may be serious allegations against the claimant, such as aggressive solicitors
Why will the promptness of the defendant be a factor in applying to set aside the judgment?
The failure to make an application promptly may justify the court in refusing relief
Can a non-party apply to set aside a default judgment?
Yes, a non-party can apply to join the defendant as a second defendant to set aside a judgment
What types of proceedings may a summary judgment be given?
Can be given in any type of proceedings against a claimant
Can be given in any type of proceedings against a defendant except proceedings for possession of premises
Can a default judgment be made against a claimant?
No, only against defendants
Can a summary judgment be made against a claimant?
Yes, it can be made against claimants and defendants
What are the grounds for giving summary judgment?
Where a party considers the other party has no real prospect of succeeding in their claim/defence
AND
There is no other compelling why the case should be disposed of at trial
What is meant by “no real prospect of succeeding” when giving a summary judgment?
Where it carries no degree of conviction, and is fanciful without any substance
Where does the burden of proof lie on proving there is no real prospect of success for a summary judgment?
It lies on the applicant to establish this
When making a summary judgment, can the court consider if new evidence may become available to give the claim a reason prospect of success?
They will likely consider whether disclosure may add new evidence to whether the claim has a real prospect of success
When may a claimant be prevented from obtaining summary judgment?
If the defendant can show he intends to raise a set-off defence or counterclaim, and has a prospect of succeeding in this
When can a claimant apply for summary judgment?
As soon as the defendant has filed an acknowledgment of service or a defence
UNLESS
Court gives permission
In which circumstances can a claimant apply for summary judgment after the claim form has been served (if D has not filed an AoS or defence)
Where the claim is for specific performance or rescission of an agreement
If a claimant has applied for a summary judgment after Def has filed their AoS, does the Def need to file a defence?
No, there is no obligation to file their defence
How many days notice must a respondent be given when a summary judgment hearing is fixed?
At least 14 days notice before the hearing date
What must an application notice for summary judgment include?
Identify any points of law or document relied upon
Any written evidence
State the grounds for summary judgment
If a party wishes to rely on written evidence at a summary judgment hearing, when must they serve the evidence on the other parties?
7 days before the hearing for the respondent’s evidence
3 days before the hearing for the applicant’s evidence
What orders may the court make after hearing the application for summary judgment?
Judgment of the claim
Striking out or dismissal of the claim
Dismissal of the application
Conditional order/costs order
When will the court strike out a claim upon summary judgment?
Where the claimant’s claim is unwinnable
What conditional orders may the court grant upon summary judgment?
For a party to pay a sum of money into the court
When may the court strike out a statement of case?
If there are no reasonable grounds for bringing or defending the claim
OR
There is an abuse of process
OR
There has been a failure to comply with a court order or rule
When a court has struck out a claim’s statement of case and ordered to pay costs to the defendant, but then the claimant starts another claim against the same defendant, what must the court do?
They court may, on application by the defendant, stay the other claim until the costs of the first claim have been paid
Where the claimant serves the claim form then serves the particulars of claim 7 days later, what must the defendant do to prevent a default judgment?
Within 14 days of service of the particulars of claim, file an acknowledgment of service
In deciding whether to set aside a default judgment, what is the most significant factor the court must consider when deciding whether to grant the application?
The promptness of the defendant in bringing the application, and any delay by them
If a claimant wishes to obtain default judgment against one defendant in a claim, what will the court consider if there is another defendant in the claim?
If the claim against the other defendant can be dealt with separately from the claim
If not, they will not enter default judgment
If a claimant has had their claim dismissed, but then they bring another claim on exactly the same facts, what should the defendant do?
Don’t file an acknowledgment or service or defence
Instead, file an application to strike out the claimant’s claim on the basis of abuse of process
Is bringing a claim after the time limit has expired consider an abuse of process?
Yes, this is an abuse of process, and the court can therefore strike out the claim
Can the court deal with an interim application without a hearing?
Yes, if they do not consider a hearing would be appropriate
Can a claimant apply for a summary judgment at any time?
No, the claimant must wait until the defendant has filed an acknowledgment of service or defence
When is the best time to make an application to strike out a claim?
As soon as it becomes apparent that it is necessary and desirable to make an application
How does a party obtain judgment to strike out a claim?
They must file a request for judgment, and state that their right to enter judgment has arisen due to non-compliance with an order
If a default judgment by request is obtained against a child, who was not known to be a child, what must the court do?
The default judgment will be set aside, as they were a child and the default judgment was obtained by request
When will a conditional order be made?
Where it is possible the defendant may have a defence, but the other parts of the claim will likely not succeed
The court can then order for a sum of money to paid into the court
When will the court strike out a claim in summary judgment?
Where the claimant’s claim is unwinnable
When will the court dismiss an application
Where the court is satisfied the respondent’s case has no real prospect of success
If a claimant is seeking equitable relief, how do they claim default judgment?
They must make an application to the court
(14 days after service of claim form and particulars)
What is the most important factor the court will consider for an application to set aside default judgment?
The promptness and any delays in the application to set aside by the defendant
What does the bringing of a claim after the expiry of the limitation period amount to?
It amounts to abuse of process, meaning it can be struck out
Where the claimant has applied for default judgment, but they have failed to do something in the lead up, what may happen to the judgment?
It may be set aside for “some other good reason”
Can an interim remedy be made before the claim form and particulars have been issued?
Yes
Where the claimant has applied for default judgment, but it turns out that the defendant HAD served the acknowledgment of service in the required time, what will the judge do?
The judge MUST set aside the default judgment, as the acknowledgment of service has been served within the required time
Where a claimant uses Part 8 procedure, can they obtain default judgment?
No
If a respondent’s claim is merely arguable, should summary judgment be granted?
Yes
