Unit 3 Statements of Case and Interim Applications Flashcards
Statements of Case
= formal docs in which the parties concisely set out their respective cases.
Served between parties and filed at court.
A solicitor must not mislead the court so should only include assertions in the statements of case that are properly arguable i.e. theres evidence.
Statements of Case - claim form
A separate particulars of claim may be required if complex.
Starts process along with particulars of claim.
Statements of Case - Particulars of claim
Must include:
(a) A concise statement of the facts on which the claimant relies.
(b) If the claimant is seeking interest, a statement to that effect and the details.
Will depend upon the relevant cause of action.
- Claim based on breach of contract
Should deal with:
(a) The status of the parties
(b) Existence of contract:
(c) Terms
(d) Breach alleged and particularised
(e) Factual consequences
(f) Damage and loss alleged and particularised.
(g) interest
Unless specified in contract, 8% per annum above the Bank of England’s base rate on the date the debt became due for payment. - Claims based on negligence
Similar. Content will differ to reflect the legal elements of duty of care, breach of that duty, causation and loss.
Court has discretion to award interest on damages.
Statements of Case - Defence
a) denied;
b) not admitted; or
c) admitted.
D must state:
* their reasons for doing so; and
* their own version of events if different from that given by the claimant.
A non- admission is made where the defendant has no knowledge of the particular matter alleged.
Contents:, parties, statement of truth, details of who is to be served and where etc.
If D alleges limitation ran out, burden of proof transferred to C.
Burden of proof on D for:
- CN
- a failure by the claimant to mitigate its loss.
Statements of case - additional claims - counterclaim
Where the defendant is alleging they have their own cause of action against the claimant.
If D has suffered loss.
Defence and new claim set out in single doc.
Permission is not required from the court unless the defence has already been filed.
Statements of case - additional claims - indemnity and contribution
- Indemnity
A claim for an indemnity may arise where there is a contractual relationship between the defendant and the third party, in which the latter is obliged by the terms of a contract to indemnify the defendant if they are found liable for the claim. This may also arise by way of statute.
- Contribution
Where there are joint wrong- doers and the defendant argues that the third party is partly responsible for the harm the claimant has suffered.
Statements of case - additional claims - defence to counterclaim
If claimant wants to you 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.
Statements of case - amendments
- Before expiry of the limitation period
When applying for permission, the applicant should file a copy of the statement of case with the proposed amendments together with an application notice.
The court will then decide whether or not to exercise its discretion to grant the application.
- After expiry of the limitation period
Court may allow an amendment only in the following three circumstances:
a) to add or substitute a new claim, if this arises out of the same or substantially the same facts as an existing claim;
b) to correct a (genuine) mistake as to the name of a party;
c) to alter the capacity in which a party claims.
Statements of case - requests for further info
When statement of case is confusing or fails to set out the case enough.
At any time, either the court or the parties may request further information and, if successful, a party will be ordered to:
(a) clarify any matter that is in dispute; or
(b) give additional information in relation to any such matter.
Must first serve written request on other party allowing reasonable time for response.
Response must be in writing. Should be:
∘ served on all the parties;
∘ filed with the court; and
∘ verified by a statement of truth.
Interim Applications
Applications that are made after litigation starts but before the trial.
Types:
- to request more time
- to consider penalties
- to ensure compliance with procedure
Should try to resolve it between yourselves first.
Evidence of support - witness statement.
Applicant should attach a draft of the order sought to assist the judge.
Must be served on opponent at least 3 clear days before hearing.
Hearings - time of one hour or less will be conducted by telephone if possible.
Interim Applications - Consent orders
If the 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.
The parties must ensure they provide the court with any material it needs to be satisfied that it is appropriate to make the order, and usually a letter will suffice.
Interim Applications - Interim costs
Parties collect evidence, prepare notice of application and supporting witness statement and attend hearing.
Court fee payable.
Judge will decide the issue of costs.
Common types:
- No order as to costs
- Costs in the case
Sorted at end of proceedings
- Named party costs
Party named pays cost. Normally assessed instantly and to be paid in 14 days.
Summary judgment
CPR 24.3 Court may give summary judgment on the whole of the claim or a particular issue if:
(a) it considers that:
(i) the claimant has no real prospect of succeeding on the claim; or
(ii) the defendant has no real prospect of successfully defending the claim; and
(b) there is no other compelling reason why the case should be disposed of at trial.
Compelling reason e.g. time to investigate, complex etc.
Made by either party at any time.
Respondent has at least 14 days notice of hearing date.
Must file and serve any written evidence at least 4 days before hearing.
Summary judgment - possible orders and costs
Possible orders:
(a) Judgment on the claim: claim succeeded (specified sum - may award fixed costs, unspecified - winner gets costs)
(b) The striking out or dismissal of the claim: D has succeeded in their application to dispose of the claimant’s claim. (C pays Ds costs)
(c) The application is dismissed: proceed towards trial. (trial, unsuccessful party pay successful parties costs)
(d) A conditional order: the application has not been granted, but equally the respondent has not succeeded in having it dismissed – neither side has won. (usual costs order in case)
Interim injunctions
Either party may apply for (and be granted) an interim injunction in support of their cause of action.
At any time once commenced, in exceptional cases beforehand.
Aim to maintain current position until the trial.
