Topic 11- Interim Payments and Injunctions

Question 1

At what point may a claimant apply for an interim payment?

Answer 1

They may apply after the end of the period for the defendant to file his acknowledgement of service

Question 2

What is an interim payment?

Answer 2

This is a payment on account of any damages a party is liable for, prior to judgment

Question 3

Can a claimant make more than one application for interim payment?

Answer 3

Yes

Question 4

How many days before an interim payment application hearing must notice be served?

Answer 4

At least 14 days before the hearing

Must be supported by evidence

Question 5

When may the court make an order for interim payment?

Answer 5

When the defendant has admitted liability
OR
The claimant has obtained judgment against the defendant
OR
It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money/or land

Question 6

What must the court take into account when deciding whether to grant an interim payment?

Answer 6

Contributory negligence

Any set-off defence or counterclaim

Question 7

What is the maximum amount that the court can order when granting an interim payment?

Answer 7

Must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment

Question 8

Where a defendant has been ordered to make an interim payment, can the court adjust the payment?

Answer 8

Yes, they can order all or part of the payment to be repaid, or vary or discharge the order

Question 9

When will the court order a defendant to reimburse another defendant who has made an interim payment?

Answer 9

Where the defendant has made a claim for contribution or indemnity

Question 10

If a defendant has made an interim payment, but the final judgment was less than the actual payment, what may the court do to compensate the defendant?

Answer 10

They may award him interest on the overpaid amount

Question 11

Will the fact that a defendant has made an interim payment be disclosed in trial?

Answer 11

No, it will not be disclosed to the trial judge

Question 12

What conditions must be satisfied if an interim payment is applied for and there are two or more defendants?

Answer 12

The court must be satisfied that the claimant would obtain judgment at trial for a substantial amount of money against at least one of the defendants
AND
All the defendants are either insured, or a public body

Question 13

Can claimants apply for security for costs?

Answer 13

No - only where they are defending against a counterclaim by a defendant

Question 14

How does a defendant apply for security for costs?

Answer 14

They must make an application supported by written evidence

Question 15

What will the court do when granting an order for security for costs?

Answer 15

They will determine the amount of security, and
Direct the manner and time within which the security must be given

Question 16

What is security for costs?

Answer 16

The order protects a defendant from the risk of not being able to enforce any costs order they may later obtain

Therefore, this will enforce any ward of costs they may receive

Question 17

What conditions need to be satisfied before the court makes an order for security for costs?

Answer 17

The court must have regard to all the circumstances that it is satisfied it can make such an order

There are also conditions for the claimant-
- Eg, - Must be a company or body unable to pay D’s costs

Question 18

How many conditions need to be satisfied for the court to make an order for security of costs?

Answer 18

Only one

It is also not in the court’s discretion- it is a matter of fact

Question 19

What is meant by “stifling” of a claim using security of costs?

Answer 19

If an order for security of costs would prevent the respondent from continuing their claim (stifling), it should not be ordered

Question 20

When will security of costs be ordered against a company?

Answer 20

When there is reason to believe that it will be unable to pay the applicant’s costs

Question 21

If a claimant has attempted to hide their assets, should a security of costs order be made against them?

Answer 21

Yes, a security of costs should be ordered, as it would be more difficult to enforce an order against them

This will prevent any injustices to the claimant

Question 22

What is an injunction?

Answer 22

An order prohibiting a person from doing something, or requiring a person to do something

Question 23

Is an interim injunction binding?

Answer 23

Yes, it will be binding against a party

Question 24

Can an interim injunction be binding against a non-party?

Answer 24

It will only be binding with the permission of the court

Question 25

Does the court have discretion in ordering an interim injunction?

Answer 25

Yes, as long as it is just and equitable to do so, and in accordance with the overriding objective

Question 26

Can injunctions that may restrict freedom of expression be ordered?

Answer 26

Only in exceptional circumstances

Question 27

What is an undertaking?

Answer 27

When an injunction is granted, the claimant should give an undertaking (such as a sum of money) to the defendant

Question 28

What is the test the court must use when granting an interim injunction?

Answer 28

The American Cyanamid Co case

Question 29

What are the three questions to be asked in the American Cyanamid Test?

Answer 29

Is there a serious question to be tried? If yes, then-

Would damages be an adequate remedy for a party injured by the court’s grant of an injunction?

If not, where does the balance of convenience lie?

Question 30

How does the court answer whether there is a serious question to be tried?

Answer 30

Whether the application is neither frivolous nor vexatious

Question 31

What is a quia timet injunction?

Answer 31

Where there is a serious issue to be tried, and the harm must be so serious that it cannot be reversed or restrained

Question 32

What is meant by the question of “are there adequate remedies available”?

Answer 32

This is whether there are adequate remedies available to a claimant or defendant if an injunction were granted

For example, would remedies help a claimant if the injunction was not granted?

Question 33

What is meant by the balance of convenience?

Answer 33

Whether granting an injunction would cause more irremediable harm to one party or the other

Question 34

What is the case for the higher threshold in granting mandatory injunctions?

Answer 34

The Nottingham Building Society v Eurodynamics Systems

Is there a high degree of assurance that the claimant would be able to establish the right at trial?

Question 35

Are cross-undertakings mandatory for interim injunctions?

Answer 35

No, but the court can refuse to grant an injunction unless they give a cross-undertaking

Question 36

What happens if a claimant cannot afford to give a cross-undertaking to the defendant?

Answer 36

The burden will be on them to prove they do not have the external funds available to give a cross-undertaking

Question 37

When should an application for an interim injunction be granted without notice?

Answer 37

Where it would be made urgent to make one, then it does not need notice

Question 38

Does an interim injunction application require notice from the court?

Answer 38

Yes, you must always give notice, unless it is extremely urgent

Question 39

Does a claimant need to inform the court about any potential defences the defendant may raise?

Answer 39

No, it is the position of the defendant to inform the court of any defences

Question 40

Can a claimant obtain an interim injunction even if they were unsuccessful at trial?

Answer 40

Yes, if he can show the harm would be irreparable

Question 41

Can an interim injunction be granted in small track claims?

Answer 41

No, it can only be granted in multi-track or fast track claims

Question 42

In granting a mandatory injunction, what must the court also determine?

Answer 42

As well as the American Cyanamid principles, the court must determine that there is a high degree of assurance the claimant will establish his claim at trial

Question 43

In an order for security of costs, will the merits of the claim be considered by the court?

Answer 43

No, the merits of a claim will not be considered by the court in a security of costs application

Question 44

When must a copy of an application notice be served?

Answer 44

As soon as practicable, and at least 3 days before the court deals with the application

Question 45

What is meant by “Claimant’s costs in any event” in relation to an interim injunction?

Answer 45

It means the claimant is entitled to his costs in relation to the interim injunction