UNIT 3: STATEMENT OF CASE AND INTERIM APPS

Question 1

What is a statement of case?

Answer 1

• SOCs are formal documents in which parties concisely set out their respective cases
• First documents served between the parties
• Filed at court
• At trial, the court will only decide those issues that are raised in the statements of case, so must be drafted carefully and reviewed continually as the matter develops
• Usually consist only of [below] in civil proceedings:
  o claim form and particulars of claim - these start the process
  o if the case is contested, a defence will be filed by D

Question 2

When will the CPR provide additional documents to a statement of case?

Answer 2

• CPR provide additional documents that may also be useful:
  o If deemed necessary by the claimant they will respond with a reply.
  o The defendant may also file a counterclaim; if so, the claimant will need to serve a defence to the counterclaim.
  o If any party requires additional details of another party’s case, they may file a request and a response to the request for further information must be served On the name of the firm.

Question 3

Formalities for a statement of case?

Answer 3

• Part 16 CPR sets out the requirements and formalities of SOCs
• Precedents are a useful starting point for drafting
  o style should be clear using plain English where possible
  where a firm prepares a party’s SOC, it should be signed i

Question 4

Ethical considerations for a statement of case?

Answer 4

• A solicitor must not mislead the court so should only include assertions in the SOC that are properly arguable
  o e.g. do not allege the other party acted fraudulently if there is no evidential basis for it
• If a client has filed a SOC and subsequently tells their solicitor before the litigation ends that it contains a material error, the effect of which is to mislead the court
  o solicitor should advise the client to amend the SOC
  o if client refuses, solicitor should cease to act, not informing the court of reasons for withdrawal owing to confidentiality

Question 5

General contents of a particulars of claim?

Answer 5

• Contents and purpose governed by r 16.4(1) CPR
  must include:
  1. A concise statement of the facts on which the claimant relies. This means that it must outline all the facts giving rise to the dispute, to demonstrate the required elements of the cause of action on which the claim is based.
  2. If the claimant is seeking interest, a statement to that effect and the details.

Question 6

Contract claims - particulars: status of parties?

Answer 6

Step one.

apart from providing background information, these details are required in certain situations:
o Example: the parties should confirm the defendant’s business when relying on sale during the course of that business to establish terms implied by the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982

Claimant will set out the chronological events explaining what has occurred.

May include pre-contractual matters if they assist in establishing the claim, e.g. request for a sample or pre-contract statements

Question 7

Contract claims - particulars: existence of contract?

Answer 7

Must be established (rarely disputed in practice) and will consist of the date, type (written or oral), parties, subject matter and consideration.

Para. 7.3 of PD 16, a copy of the contractual documents must be attached to or served with the particulars of claim.

If the claim is based on an oral agreement, the contractual words used, by whom, to whom, and when and where they were spoken – para. 7.4 PD 16.

Question 8

Contract claims - particulars: Terms?

Answer 8

Details of any express terms are included and these will usually be found in the contract itself.

Any implied terms relied upon should be stated specifically.

This paragraph sets out what parts of the contract have been performed. This is important in limiting the areas of dispute the court will need to consider.

Question 9

Contract claims - particulars: breach alleged and particularised?

Answer 9

Contains details of which terms were breached and specifically how.

Question 10

Contract claims - particulars: factual consequences?

Answer 10

continuation of the chronological events where the claimant explains what happened as a result of the breach.
- Example: the poor quality goods supplied to a retailer could not be sold onto consumers or that repair work had to be carried out.

Question 11

Contract claims - particulars: damage and loss alleged and particularised?

Answer 11

the loss must be alleged generally, for example:
- By reason of the Defendant’s breaches of the Contract, the Claimant has suffered damage and loss.

The losses should then be itemised so it is clear to the defendant exactly what is being claimed from them and how this is calculated

Question 12

Interest in contract claims?

Answer 12

Interest: where the remedy sought by the claimant is either damages or the repayment of a debt, the court may award interest on the sum outstanding, but only if claimed. In breach of contract cases, there are three alternative ways of claiming interest as follows:
1. The contract itself may specify a rate of interest payable on any outstanding sum.
2. Statute: If there is no provision in the contract for interest, interest may be claimed under the Late Payment of Commercial Debts (Interest) Act 1998, which gives a statutory right to interest on commercial debts that are paid late.
 Act only applies to commercial debts, not apply unspecified (damages) claims or to a specified amount (a debt) owed by a consumer.
 The relevant rate of interest is 8% per annum above the Bank of England’s base rate on the date the debt became due for payment.
 The claimant is entitled to a small, prescribed amount of statutory compensation for the inconvenience of having to recover the debt .
3. In all other cases, the court has a discretion to award interest either under s 35A of the Senior Courts Act 1981 (SCA 1981) in respect of High Court cases, or under s 69 of the County Courts Act 1984 (CCA 1984) for County Court cases.

Specified claims: interest must be precisely calculated as a lump sum for the amount that has accrued from breach of contract up to the date of issue of the proceedings, plus a daily rate so it is easy to provide an updated total
o Example
ULaws LLP act for Guy Tibbs, a local builder who is in dispute with one of his customers, Jemma Little. He entered into a written contract to convert her basement into a games room in May [this year]. He finished the work on 12 September but, despite reminders, Jemma has not paid him the contract price of £13,000. The written contract between Guy and Jemma provides that interest is payable on late payment at the rate of 20% per annum from and including the day of completion of the works. Guy issues a claim form on 31 October.
He is entitled to interest on £13,000 for 50 days (namely 19 days in September and 31 days in October). For each day, he is entitled to interest of £7.12 (that is £13,000 x 20% ÷ 365 rounded down). Thus, on the claim form, Guy should claim £356.00 by way of interest.
Thereafter, £7.12 would be added to the outstanding balance for each day that passes up until judgment is awarded.

8. Summary of relief: traditionally, although not a requirement of the CPR, the remedies claimed are summarised towards the end of the particulars of claim.
9. Statement of truth: the claim form or particulars of claim must contain a signed statement of truth that its contents are believed to be true (Part 22)

Question 13

What is the defence?

Answer 13

D has limited amount of time in which to file a defence with the court

where solicitors are instructed, they will usually draft this as a separate document rather than completing the standard form.

• highlight what issues are in dispute
• Rule 16.5 assists the drafting of this document
• Defence must state, for each allegation, whether it is:
  1. denied (c needs to prove claim) - their reasons for doing so; and
• their own version of events if different from that given by the claimant
  2. not admitted (c needs to prove claim) - D has no knowledge of matter
  3. admitted

Question 14

Contents of defence

Answer 14

When drafting the defence, the defendant must comply with the formalities required by the CPR and must include:

• the name of the court;
• the claim number (the unique reference number that is allocated by the court on issue of proceedings);
• the parties;
• the title (DEFENCE);
• the date and signature of solicitors in the name of the firm;
• the statement of truth; and
• details of who is to be served and where
• If D alleges the relevant limitation period for the claim has expired, details of this must be given in the defence, for example, when it began and expired, and whether it ran under the terms of a contract or under the Limitation Act 1980.

Question 15

Burden of proof - time limitation?

Answer 15

• If D alleges the relevant limitation period for the claim has expired, details of this must be given in the defence, for example, when it began and expired, and whether it ran under the terms of a contract or under the Limitation Act 1980.
  o Burden of proof is then normally transferred to the claimant to show the claim is not time-barred
• Burden of proof sometimes falls on D, in relation to:
  o contributory negligence; and
  o a failure by the claimant to mitigate its loss.

Question 16

What governs additional claims

Answer 16

CPR Part 20

Question 17

What is a counterclaim?

Answer 17

• D alleges that they have their own cause of action against the claimant
• D could have taken action against C first and issued proceedings
• Relevant if D suffered loss that is attributable to the claimant
  o Good reason for non-payment, whilst not incurring any loss, is not a counterclaim and could be submitted as a defence

forms part of same doc as defence

Question 18

Structure of defence + counterclaim

Answer 18

• A counterclaim is treated as if it were a claim and should be filed with the defence
• The title to the action remains the same but the heading will now be ‘DEFENCE AND COUNTERCLAIM’
• One document is sub-divided into two sections, with the defence outlined at the beginning and the counterclaim following on immediately thereafter
• Best approach: treat the contents as a stand-alone claim, e.g. for breach of implied term of satisfactory quality
  o rather than repeating the SOC, e.g. details of the contract and incorporation of terms, the counterclaim will refer back to the defence
• First paragraph: state that the relevant paragraphs are repeated
  o Effect: the existence and terms of the contract are accepted and D’s allegation of breach is also confirmed
• Rest of the counterclaim will set out the allegations of loss resulting from the claimant’s breach
• Permission is not required from the court unless the defence has already been filed

Question 19

What is an additional claim?

Answer 19

• could be for a contribution or indemnity or some other remedy against any person whether or not they are already a party
• Part 20 claims do not need the court’s permission if made before filing defence.
• Common scenario: D wishes to pass blame, either all or part, to a third party
  o D may be seeking a full indemnity from the third party, or a contribution towards any damages they have to pay the claimant

Question 20

Indemnity claim?

Answer 20

• May arise where there is a contractual relationship between D and the third party, where the TP is obliged by the terms of the contract to indemnify D if they are liable for the claim
• This may also arise by way of statute
• Would be suited where D has a contract with 3P under which the 3P gave them a contractual warranty that the loss/damage/breach which arose to/vis-a-vis C would not.

Continuing with the scenario above, KPL claim an indemnity against Alpha Bathrooms Ltd (Alpha), the company that manufactured the bathroom suites, alleging that there was an inherent defect in the goods. If KPL lose the claim against Edwin, the liability for any sums the defendant is ordered to pay may be passed on to Alpha.

Question 21

Contribution claim?

Answer 21

• Where there are joint wrong-doers and D argues that the third party is partly responsible for the harm the claimant has suffered
• Example

Toya claims damages from Lisa as a result of a road traffic collision. Lisa alleges that another driver, Jaspar, was partly to blame for the accident. She will claim a contribution from Jaspar towards any damages that she is ordered to pay to the claimant.

Question 22

Other additional claims?

Answer 22

• D may also make other additional claims without the court’s permission provided this is done either before or at the same time as they file the defence

Question 23

Response to defence?

Answer 23

• A claimant may wish to file a reply to the defence but is under no obligation to do so
• Replies tend to be used if the claimant wants to respond to matters that have been raised in the defence but which are not covered in the particulars of claim

Question 24

Defence to counterclaim?

Answer 24

• If the claimant decides to dispute the counterclaim, they must file a defence to the counterclaim within 14 days (unless an extension of up to 28 days has been agreed with the defendant)
• If they fail to do so, the defendant may enter judgment in default on the counterclaim using the procedure

Question 25

Amendment of SOC BEFORE expiry of limitation period

Answer 25

After filing but before service: amendments can be made at any time

After filing and service: only with WRITTEN CONSENT of ALL parties !OR! by PERMISSION of COURT

• When applying for permission, applicant should file a copy of the SOC with the proposed amendments together with an application notice
  o Court then decides if it will exercise its discretion to grant the application, taking into account the overriding objective of dealing with the case justly and at proportionate cost
  o Court will need to strike a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general if it is permitted

Question 26

Amendment of SOC AFTER limitation period?

Answer 26

the court may allow an amendment only in the following three circumstances:
1. to add or substitute a new claim, if this arises out of the same or substantially the same facts as an existing claim;
2. to correct a (genuine) mistake as to the name of a party;
3. to alter the capacity in which a party claims.

Question 27

Requests for further info?

Answer 27

• Part 18 – at any time, either the court or the parties may request further information and, if successful, a party will be ordered to:
  1. clarify any matter that is in dispute; or
  2. give additional information in relation to any such matter

Question 28

Procedure for part 18 – making or responding to further information

Answer 28

1. If either party requires further information, they must serve a written request on the other party, allowing a reasonable time for the response.
   
   • request should be concise and strictly confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their own case or to understand the case they have to answer
   • ExampleKPL receive Edwin Gallagher’s defence and counterclaim to their claim. Edwin has notspecified what the flaws are that he alleges can be seen in the ceramic bathroom suites. Furthermore, in his counterclaim, he merely states that he is claiming for flood damage to his hotel but without itemising what this entails. As a consequence, KPL contact Edwin asking him to provide sufficient particulars of both the alleged breach and thedamages.
   • Requests must be made as far as possible in a single comprehensive document and not piecemeal. If brief, this may be by letter; if not, the request should be made in a separate document, which must be sent to the other party.
   • Request must be headed with the name of the court, the title and number of the claim and identify that it is a Part18 request.
     
     • The requests should be set out in separate numbered paragraphs, and state the date for a response.
2. Once the request has been received, the other party must deal with the issues raised
   
   • response must be in writing, dated, and signed by the party or their solicitor
   • response should set out the same information as the request and detail the response
   • response must be:
     
     • served on all the parties;
     • filed with the court; and
     • verified by a statement of truth
   • If a request for further information is not responded to, or cannot be complied with, an application may be made to court under Part18.
     
     • Court will grant an order if it is satisfied that the request is confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their case or to understand the case against them.

Question 29

Interim applications: purposes?

Answer 29

aim is to ensure that the case proceeds as quickly and efficiently as possible in accordance with the overriding objective.

To ensure compliance with procedural matters:
* permission to serve a claim form out of the jurisdiction
* challenging the court’s jurisdiction
* permission to amend a statement of case or to make an additional claim

To request more time
* to serve a claim form or a defence
* to serve the list of documents

To assist in preparation for trial
* requiring a reply to a Part 18 request for further information
* seeking disclosure of documents
To consider penalties
* applying for a sanction against the opponent for failing to meet a deadline
* applying for relief from a sanction imposed by the court, such as the imposition of a penalty costs order or the striking out of a claim

Question 30

Interim apps - procedure?

Answer 30

• Before applying to court, the parties should seek to resolve matters between themselves to comply with the overriding objective and to avoid the imposition of costs penalties.
  o Usually done through the exchange of correspondence (by letter or email)
  o If that fails, then an application should be made.
• Part 23 - the party who is applying for an IO must complete an application notice and Form N24 should be used.
  o Applicant - party making application
  o Respondent - party against whom the order is sought

Question 31

Content of an interim application

Answer 31

• Must contain:
  o what order is being sought and why
  o the facts the party is relying on in support of, or for opposing, the application
  o verification by a statement of truth
• If straightforward issues are raised, the applicant will complete the box on the second page of Form N244
• If there is insufficient space on the form, a witness statement can be filed at the same time
  o the party can also rely on the contents of a statement of case (e.g., particulars of claim)

Evidence in support:
o Witness statement should be made by the person best able to address the relevant points from personal knowledge:
 Technical applications - solicitor is likely to make the statement
 e.g., for the amendment of a statement of case
 Other situations - may be the client
o Statement should:
 include the factual information and the evidence in support of the application; and
 anticipate the opponent’s case, where appropriate
o Must contain sufficient detail to persuade the court to make the order, as there will be no oral evidence from witnesses at the hearing.
 Though the solicitor will make submissions, the judge will decide the issue primarily on the basis of written evidence.
 Witness statement should cover all the required points, and, if necessary, attach relevant documents as exhibits.

Question 32

Draft order

Answer 32

Practice Direction 23A - except in the most simple of applications, the applicant should attach a draft of the order sought to assist the judge

Question 33

Service of interim app

Answer 33

• Application notice must be served on the opponent at least three clear days before the court hearing to allow the other party to respond and/or to object to the application.
  o Clear days = the date of service and hearing are excluded, as well as weekends and bank holidays.

ULaws LLP are acting on behalf of a company that is engaged in litigation against a defendant. They issue an interim application on behalf of their client. A hearing is listed for Thursday 10 November. Counting back from this date, the three clear days are Wednesday 9, Tuesday 8 and Monday 7 November; so the latest day on which the documents can arrive with the opponent is Friday 4 November (as the weekend is excluded). Given that such documents are deemed served on the second day after being sent by first class post provided this is a business day, ULaws LLP must post the application notice and the witness statement in support no later than Wednesday 2 November.

Question 34

Consent orders

Answer 34

• If parties have reached agreement on the order they require, they can apply to the court for an order to be made by consent without the need for attendance at the hearing.
  o Requirements - court should be given any material it needs to be satisfied that it is appropriate to make the order (usually a letter will suffice)
  o Advantage - saves costs for all concerned

Question 35

Orders made without notice

Answer 35

• General rule - applications must be made on notice to the other party
  o ensures that the opponent is aware of the application so they may file evidence in response and arrange for attendance at the hearing
• Exceptions to the general rule: where…
  o there is exceptional urgency; or
  o the overriding objective of the CPR would be best achieved by making an order without notice
   Example:
   where the applicant is applying to freeze their opponent’s financial assets or to search their premises
   in such instances, giving warning of the intended action would defeat the purpose of the application as it would allow time for assets to be moved or destroyed
• Points to note:
  o in the application, evidence must explain why notice was not given
  o applicant has a duty of full and frank disclosure -
   they cannot take advantage of the respondent’s absence at the hearing
   they must draw the court’s attention to evidence and arguments they reasonably anticipate the respondent would want to make
• If an interim order without notice is granted: these documents must be served on the respondent as soon as practicable:
  o (a) the court order;
  o (b) the application notice; and
  o (c) any supporting evidence
• Respondent’s rights - the respondent can apply to set aside or vary the order within 7 days of service of the order upon them.

Question 36

Telephone hearings

Answer 36

• Conducting hearings by telephone or VC is actively encouraged now
• PD 23A - general rule is that interim applications with a time estimate of one hour or less will be conducted by telephone if at all possible
• NB this does not apply to the hearing of an application made without notice to the other party

Question 37

Interim costs - general rules

Answer 37

• Costs for an interim application include:
  o collecting evidence
  o preparing the notice of application
  o preparing any supporting witness statement(s)
  o attending the hearing
  o court fee
• Judge will decide the issue of costs at the end of any interim application - ‘pay as you go’ litigation.
• General costs rule applies - loser pays the winner’s costs
  o normal, therefore, to order the respondent to pay the applicant’s costs, if the order is granted
• Type of cost order - depends on:
  o the nature of the application
  o the conduct of the parties (e.g., a party who wants permission to amend their statement of case starts from a weak position as the document should have been properly drafted in the first place. They may have to pay the costs of application even if they win)

Question 38

Paying [named party’s] costs

Answer 38

The party named in the order is entitled to their costs of the interim application whatever other costs orders are made in the proceedings. These costs are normally summarily (instantly) assessed and ordered to be paid within 14 days  ie an order for ‘claimant’s costs’; D must pay C’s costs.

Applies when there is a clear ‘winner’ such as where the claimant succeeds in their application for summary judgment. The unsuccessful party would be ordered to pay the costs.

Question 39

Costs in the case

Answer 39

In an order for costs in the case, no party is named and, at this stage, neither party can recover their costs. It only becomes apparent who is to pay the costs of the interim application at the conclusion of the proceedings. The ultimate loser of the litigation will also be liable for these costs.

This could apply if the court makes a conditional order, for example, that the defendant may continue to defend the proceedings but only if they file a full defence within 14 days. If they fail to do so, only then would the claimant receive the costs of the interim application.

Question 40

No order as to costs

Answer 40

Each party is to bear their own costs of the interim application whatever costs orders are made at the end of the proceedings.

This order is often made when the outcome of the interim application is effectively a draw with neither party being perceived to be at fault. An example may be where evidence later comes to light that requires additional witness statements to be filed.

Question 41

Summary judgement?

Answer 41

• Once a claim has been served, D may:
  o (a) do nothing - in which case C will apply for default judgment;
  o (b) admit the claim, allowing it to be enforced; or
  o (c) file a full defence so the case proceeds to trial
  o (d) file a weak defence - because the case has no substance, or as a delaying tactic to buy more time
• Filing a weak defence:
  o D may be looking for additional evidence
  o D may just not have enough financial assets available to pay the claim
  o C would almost certainly succeed at trial but this would cost them additional time and money
• Part 24 CPR - provides a solution for C to bring the matter to an early conclusion: summary judgment
• Summary judgment applications are usually brought by Cs, but Ds can bring them too (e.g., where a litigant in person has filed a weak particulars of claim or one which has no legal basis)
  ❗ Rule 24.2 - a court may give summary judgment on the whole of a claim or a particular issue if:
• (a) it considers that:
  o (i) C has no real prospect of succeeding on the claim; or
  o (ii) D has no real prospect of successfully defending it; and
• (b) there is no other compelling reason why the case should be disposed of at trial </aside>
• Cases unsuitable for summary judgment - where there are complex issues that need proper investigation at trial or difficult questions of law
• Practice note - Part 24 is a useful mechanism that should be considered by the parties wherever appropriate, particularly as it is consistent with the overriding objective of the CPR to deal with

Question 42

No real prospect?

Answer 42

• Court will consider the evidence - varies from case to case
• With the increase of litigants in person, there is a risk that claims are pursued or defended with limited understanding of the legal merits of a particular issue or the requirements of evidence
  o responsibility is on the court to weed out the hopeless cases

Question 43

Compelling reasons?

Answer 43

• Judge must also be satisfied that there are compelling reasons to allow the matter to proceed to trial.
• Common reasons would be:
  o The need to allow more time for the matter to be investigated, perhaps due to difficulties in contacting an important witness
  o The claim or defence is of a highly complicated and/or technical nature so it can only be properly understood with all the evidence available at a full trial
  o The need to hear from witnesses, particularly if one of the central issues (e.g., the terms of a contract) is disputed oral evidence
• NB the hearing is not the trial - submissions should be based on the criteria of Part 24
  o Respondent should concentrate on establishing a compelling reason to allow the proceedings to continue and not attempt to argue their case in its entirety.
  o Obtaining an order for summary judgment is not a given and indeed, the easier option may be for the judge to allow the proceedings to continue.

Question 44

Procedure for summary judgement?

Answer 44

• Application for summary judgment can be made by either party at any time
• Exception - court’s permission will be required only where C wishes to apply before D has filed an acknowledgement of service or a defence
• Claimants invariably wait until after the defence is filed (because of the requirement to convince the judge that D has no real prospect of defending the claim)
• The procedure:
  o The applicant applies with Form N244 and (usually) a witness statement in support.
  o The respondent must:
   be given at least 14 days’ notice of the hearing date; and
   file and serve any written evidence at least 7 days before the hearing
  o If the applicant wishes to rely on further evidence, this must be filed and served at least 3 days before the hearing

Question 45

Claimant defendant rules for summary judgement

Answer 45

o a claimant applicant has to prove both that the defendant has no real prospect of successfully defending the claim and that there is no other compelling reason why the matter should proceed to trial; but
o a defendant respondent need only succeed in preventing the claimant from proving one aspect to ensure the dismissal of the application for summary judgment.

Question 46

Possible orders following summary judgement application

Answer 46

• Possible orders that a judge might make:
  o Judgment on the claim: this means that the claimant has succeeded in their application for summary judgment and the matter will proceed to enforcement.
  o The striking out or dismissal of the claim: here, the defendant has succeeded in their application to dispose of the claimant’s claim and the case comes to an end.
  o The application is dismissed: the applicant has failed to bring the case to an early conclusion and it will now proceed towards trial.
  o A conditional order: the application has not been granted, but equally the respondent has not succeeded in having it dismissed – neither side has won.
• Conditional orders - will be made where the court concludes it is possible, but not probable, that the claim or defence may succeed
  o party will be allowed to continue with the litigation provided they pay a sum of money into court or take a specified step in relation to their claim
  o Rationale - ensures that the party is genuine in their desire and ability to pursue the matter, and in D’s case, they are not merely delaying payment
  o Example:
  In Joe’s claim against Classic, the judge makes a conditional order. She allows Classic to pursue their defence provided they file and serve a full defence within 14 days of the hearing and pay the sum of £24,000 (the value of the claim) into court within 28 days. If Classic fails to do so, their defence will be struck out and Joe will be able to enforce his claim.
• Where the court dismisses the application or makes an order that does not completely dispose of the claim, case management directions are usually given as to the future conduct of the case.

Question 47

Conditional orders for summary judgements

Answer 47

will be made where the court concludes it is possible, but not probable, that the claim or defence may succeed
o party will be allowed to continue with the litigation provided they pay a sum of money into court or take a specified step in relation to their claim
o Rationale - ensures that the party is genuine in their desire and ability to pursue the matter, and in D’s case, they are not merely delaying payment

Question 48

Summary judgement costs

Answer 48

• Costs order will depend on the type of claim and the outcome of the application:
  o Where a claimant succeeds in obtaining summary judgment for a specified sum, the court may award fixed costs under Part 45. However, it is open to the claimant to request a higher figure as their costs usually exceed these, and to ask for summary assessment of the costs.
  o If a claimant is awarded summary judgment in an unspecified claim, the usual rule applies so that the winner (the claimant) is granted their costs. These will be summarily assessed and a further hearing will be listed to assess the damages payable by the defendant (a disposal hearing).
  o If the defendant secures summary judgment so the entire claim is struck out, the court will normally order that the claimant pays the defendant’s costs of the whole claim – again, subject to summary assessment.
  o If the application is dismissed, the proceedings will continue and the unsuccessful party will pay the successful party’s costs of the summary judgment hearing.
  o If a conditional order is made, the usual order will be for costs in the case.

Question 49

Who can apply for an interim injunction and when?

Answer 49

• Either party may apply for (and be granted) an interim injunction in support of their cause of action
• An injunction can be sought any time after proceedings have commenced and
  o exceptionally, beforehand but the Court must be satisfied that (1) the matter is urgent, or (2) it is otherwise desirable in the interests of justice.
• If granted pre-trial, the orders are known as interim injunctions
  o Will remain in force until the matter comes to trial (or until further order)
  o At trial, the court will decide whether or not to make a final injunction.

Question 50

What is an injunction?

Answer 50

• Distinguishing feature - breach of an injunction is punishable as a contempt of court
• Additional feature - injunctions are a discretionary remedy and may only be granted when damages are not an adequate remedy for the applicant
• Aim of injunctions - to maintain the status quo until trial
• Operation -
  o they will generally be used to prevent D from taking certain steps, e.g., soliciting customers of C, but
  o can also be used to order a party to take action, e.g., to stop committing a nuisance

Question 51

Guidelines for determining whether to grant an interim injunction

Answer 51

American Cyanamid Co (No 1) v Ethicon Ltd, court determines:

(a) there is a serious question to be tried; ie serious breach of copyright and serious loss of profits / out of business
(b) damages are an adequate remedy for either side;
(c) the balance of convenience lies in favour of granting or refusing the injunction; and
(d) whether there are any special factors.

Question 52

Cross-undertaking

Answer 52

Applicant’s cross-undertaking - If an interim injunction is granted, the applicant must undertake to the court to pay any damages that the respondent (or any other party affected by the order) sustains by reason of the injunction, if it subsequently transpires that the injunction ought not to have been granted.

Question 53

Procedure for interim injunctions

Answer 53

• Party seeking the order must apply with an application notice with evidence in support (usually a witness statement)
  1. Orders obtained with notice:
  
  • Interim injunctions are usually obtained on notice, so D has prior warning of the hearing.
  • They last until the trial of C’s action unless they are set aside earlier by the court, perhaps because of a change of circumstances.
    
    2. Orders obtained without notice:
  • Under Part 25, the court may grant an interim remedy on an application made without notice if there are good reasons for doing so, such as:
    
    • there is insufficient time, or
    • giving notice would enable D to harm C in some way, e.g., by destroying evidence that would support C’s case (more common)
  • Two forms of injunction without notice:
    
    • (a) The court may fix a date for a further hearing with all parties present, in which case it lasts until the date specified for that hearing. If the defendant successfully argues that the injunction should not be granted, it will be set aside
    • (b) Alternatively, rather than fixing a hearing date, an injunction without notice may simply tell the defendant that they may, if they wish, apply on notice for the order to be varied or set aside. In the meantime, the injunction remains in force until trial or further order.
  • Examples of injunctions that can be made without notice:
    
    1. Freezing injunctions - restrain a party from removing their assets from the jurisdiction (E&W)
       
       1. if notice was given, the respondent could transfer their assets prior to the hearing
       2. court must be satisfied that:
          
          1. the applicant has a good arguable claim and
          2. there is a real risk the respondent will dispose of their assets so as to defeat the enforcement of an eventual judgment
    2. Search orders - compels the respondent to allow their premises to be searched by the applicant, where the applicant believes that the respondent has documents or property belonging to them
       
       1. if notice was given, the respondent would be able to hide the items elsewhere
       2. court must be satisfied that:
          
          1. the applicant appears to have a strong case;
          2. the applicant will suffer serious harm if the order is not made; and
          3. the respondent has incriminating materials in their possession which cannot be obtained by other means

Question 54

Interim payments - meaning, rationale

Answer 54

• Meaning - an advance payment on account of any damages, debt, or other sum (excluding costs) that D may be held liable to pay
• Rationale - enables a C who has a strong case on liability to avoid the financial hardship and/or inconvenience that might otherwise be suffered because of any delay during the period between the start of the claim and its final determination
• Practice note - before making an application to the court, C should try to negotiate with D or D’s insurance company to obtain a voluntary interim payment. Only if one is not forthcoming, should an application be made.

Question 55

Timing for interim payments

Answer 55

C may not seek an interim payment until after the time for acknowledging service has expired, though they can make more than one application during the proceedings.

Question 56

Procedure for interim payments

Answer 56

• Application notice for an interim payment must be served at least 14 days before the hearing date.
• Evidence must be provided and should set out:
  o the amount requested and what it will be used for;
  o the amount of the sum of money that is likely to be awarded at final judgment; and
  o the reasons for believing that the grounds required by the CPR are satisfied.
• Documents supporting the application should be exhibited to the witness statement.
  o if the respondent wants to rely on evidence to counter the application, this must be served at least 7 days before the hearing
  o the applicant can respond with further evidence if served at least 3 days before the hearing

Question 57

Interim payments grounds

Answer 57

• Part 25 - grounds that must be satisfied before the court will make an interim payment are:
  
  • D has admitted liability; or
  • C has obtained a judgment against D for damages to be assessed or for a sum of money; or
  • the court is satisfied that, if the case went to trial, C would obtain judgment for a substantial amount of money (other than costs)
• Usually, an interim payment order will only be made if there is likely to be a delay in the assessment of damages, e.g., because the situation is ongoing or particularly complex
• for the third ground, the burden on the applicant is high
  
  • Applicant must prove, on the balance of probabilities, that they will succeed.
  • insufficient that the court considers it likely that they will do so

Question 58

Orders - interim payments

Answer 58

• After establishing entitlement to an interim payment, the court has discretion in relation to two questions:
  o (a) Should an order for an interim payment be made?
   If the issues are complicated or difficult issues of law arise, the court may decide not to order an interim payment at all
  o (b) If yes, what should the amount be?
   Court cannot order a sum or more than a reasonable proportion of the likely amount of the final judgment, and must take into account contributory negligence and any counterclaim
   Court will try to calculate what figure is indisputably due to C and then determine what D is able to pay
• Can be ordered in one lump sum, or in instalments
• The trial judge will not be told about any interim payment order or voluntary payment until after they have determined all issues of liability and quantum, unless the defendant consents.
• As the purpose of keeping any payment secret is to avoid the trial judge’s decision being influenced in any way, it is difficult to see when a defendant would give their consent.