Topic 11- Interim Payments and Injunctions Flashcards
At what point may a claimant apply for an interim payment?
They may apply after the end of the period for the defendant to file his acknowledgement of service
What is an interim payment?
This is a payment on account of any damages a party is liable for, prior to judgment
Can a claimant make more than one application for interim payment?
Yes
How many days before an interim payment application hearing must notice be served?
At least 14 days before the hearing
Must be supported by evidence
When may the court make an order for interim payment?
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
What must the court take into account when deciding whether to grant an interim payment?
Contributory negligence
Any set-off defence or counterclaim
What is the maximum amount that the court can order when granting an interim payment?
Must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment
Where a defendant has been ordered to make an interim payment, can the court adjust the payment?
Yes, they can order all or part of the payment to be repaid, or vary or discharge the order
When will the court order a defendant to reimburse another defendant who has made an interim payment?
Where the defendant has made a claim for contribution or indemnity
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?
They may award him interest on the overpaid amount
Will the fact that a defendant has made an interim payment be disclosed in trial?
No, it will not be disclosed to the trial judge
What conditions must be satisfied if an interim payment is applied for and there are two or more defendants?
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
Can claimants apply for security for costs?
No - only where they are defending against a counterclaim by a defendant
How does a defendant apply for security for costs?
They must make an application supported by written evidence
What will the court do when granting an order for security for costs?
They will determine the amount of security, and
Direct the manner and time within which the security must be given
What is security for costs?
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
What conditions need to be satisfied before the court makes an order for security for costs?
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
How many conditions need to be satisfied for the court to make an order for security of costs?
Only one
It is also not in the court’s discretion- it is a matter of fact
What is meant by “stifling” of a claim using security of costs?
If an order for security of costs would prevent the respondent from continuing their claim (stifling), it should not be ordered
When will security of costs be ordered against a company?
When there is reason to believe that it will be unable to pay the applicant’s costs
If a claimant has attempted to hide their assets, should a security of costs order be made against them?
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
What is an injunction?
An order prohibiting a person from doing something, or requiring a person to do something
Is an interim injunction binding?
Yes, it will be binding against a party
Can an interim injunction be binding against a non-party?
It will only be binding with the permission of the court
Does the court have discretion in ordering an interim injunction?
Yes, as long as it is just and equitable to do so, and in accordance with the overriding objective
Can injunctions that may restrict freedom of expression be ordered?
Only in exceptional circumstances
What is an undertaking?
When an injunction is granted, the claimant should give an undertaking (such as a sum of money) to the defendant
What is the test the court must use when granting an interim injunction?
The American Cyanamid Co case
What are the three questions to be asked in the American Cyanamid Test?
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?
How does the court answer whether there is a serious question to be tried?
Whether the application is neither frivolous nor vexatious
What is a quia timet injunction?
Where there is a serious issue to be tried, and the harm must be so serious that it cannot be reversed or restrained
What is meant by the question of “are there adequate remedies available”?
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?
What is meant by the balance of convenience?
Whether granting an injunction would cause more irremediable harm to one party or the other
What is the case for the higher threshold in granting mandatory injunctions?
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?
Are cross-undertakings mandatory for interim injunctions?
No, but the court can refuse to grant an injunction unless they give a cross-undertaking
What happens if a claimant cannot afford to give a cross-undertaking to the defendant?
The burden will be on them to prove they do not have the external funds available to give a cross-undertaking
When should an application for an interim injunction be granted without notice?
Where it would be made urgent to make one, then it does not need notice
Does an interim injunction application require notice from the court?
Yes, you must always give notice, unless it is extremely urgent
Does a claimant need to inform the court about any potential defences the defendant may raise?
No, it is the position of the defendant to inform the court of any defences
Can a claimant obtain an interim injunction even if they were unsuccessful at trial?
Yes, if he can show the harm would be irreparable
Can an interim injunction be granted in small track claims?
No, it can only be granted in multi-track or fast track claims
In granting a mandatory injunction, what must the court also determine?
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
In an order for security of costs, will the merits of the claim be considered by the court?
No, the merits of a claim will not be considered by the court in a security of costs application
When must a copy of an application notice be served?
As soon as practicable, and at least 3 days before the court deals with the application
What is meant by “Claimant’s costs in any event” in relation to an interim injunction?
It means the claimant is entitled to his costs in relation to the interim injunction
When may the respondent to an interim payment application file their written evidence?
At least 7 days before the application hearing
If a claimant’s lack of financial means may have been caused by the defendant’s conduct, will the court allow security of costs?
Likely not, as it may demonstrate a stifling of a genuine claim
Can the court make an order to adjust the interim payment?
Yes (whether voluntarily or under an order)
Can the court order a defendant to reimburse another defendant who has made an interim payment?
Yes
