Unit 3 - Statements of case and interim applications Flashcards
What are statements of case?
The formal documents in which parties set out their respective cases.
They typically include the claim form, particulars of claim and any defences.
What further documents can occasionally form a statement of case?
A reply
Counterclaims
Defence to counterclaims
Response to request for further information
What are the three key headings on the particulars of claim?
Particulars of claim
Particulars of breach
Particulars of loss and damage
What should be included under the ‘particulars of claim’ heading on the particulars of claim? (6)
The status of the parties
Chronological events
Substance of the matter / legal elements that underpin their case
Express or implied terms relied upon
How the contract was specifically breached
What should be included on the ‘particulars of breach’ heading on the particulars of claim?
Factual consequences resulting from defendant’s actions
The damage and loss alleged
What should be included in the ‘particulars of loss and damage’ heading on the particulars of claim?
Itemised loss and how it is calculated
The interest expected on the sum outstanding
How can interest be claimed on damages? (3)
The contract any specify a rate which is applied to the outstanding sum
Interest may be claimed under the Late Payment of Commercial Debts (Interest) Acts - this is usually 8% above the base rate of the Bank of England on the date the debt became due.
The court has discretion to award under statute (Senior Courts Act - High Court, County Courts Act - County Court)
What should be included on the particulars of claim for specified claims in terms of interest?
The 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.
What is the purpose of a defence?
To answer the claim to highlight which issues are in dispute.
In each allegation they must state whether they are denied, not admitted or admitted.
What must a defendant include in their defence when denying an allegation?
Their reasons for doing so
Their own version of events
When would a defendant not admit the allegation on a defence?
When the defendant has no knowledge of the particular matter alleged.
Who bears the burden of proof if a defendant alleges a limitation period has expired?
The defendant must raise this in their defence and the claimant must then prove that it is not time-barred.
When does a burden of proof fall on a defendant?
In contributory negligence claims
Failure by a claimant to mitigate their loss
When can an additional claim be made by a defendant?
For an indemnity from another party to the defendant
For a contribution from another party to the defendanf
How long does a claimant have to dispute a counterclaim?
14 days
28 days if agreed with the parties
What happens if a claimant fails to file a defence to a defendant’s counterclaim?
The defendant can apply for a default judgment.
When can amends to a statement of case be made before a limitation period expires?
After filing/before service - amends can be made at any time
After filing and service - amends can be made with written consent of the parties or in the court’s discretion
When can amends be made to a statement of case when the limitation period has expired?
If they are adding/substituting a new claimant
To correct a genuine mistake as to to the name of the party
To alter capacity in which a party claims
When can a party request further information?
At any time when a statement of case fails to set out the case precisely enough.
How should a response be made to a request for further information?
In writing
Dated
Signed by the party or their legal representative
Served on all parties, filed with the court and verified by a statement of truth
What happens if a request for further information is not responded to?
An application may be made to the court to grant an order if the request is confined to reasonably necessary and proportionate matters to enable the applicant to prepare their case or understand the case against them.
What are interim applications?
Applications made after litigation starts but before the trial.
What interim applications can be made to ensure compliance with procedural matters?
Challenging the court’s jurisdiction
Permission to amend a statement of case
Permission to serve a claim form out of the jurisdiction
What interim applications can be made to request more time?
To serve a claim form or defence
To serve a list of documents
What interim applications can be made to assist in preparation for trial?
Requiring a reply to a Part 18 request for further information
Seeking disclosure of documents
What interim application can be made to ask the court to consider penalties?
Applying for sanctions for failing to meet a deadline
Applying for relief from a sanction.
What is an application notice?
A notice stating what is being sought and why which is sent to the other parties.
When should an application notice be served on the opponent?
3 clear days (i.e. excluding the date of service, hearing, weekends and bank holidays)
What should a party apply for where they have reached an agreement on an order?
A consent order
When can consent orders be made without notice?
In exceptional urgency
When it would be best achieved by making an order without notice e.g. freezing financial assets
What documents should be served on the respondent if an application is made without notice?
The court order
The application notice
Any supporting evidence
How long does a claimant have to set aside or vary an application without notice?
Within seven days of the service of the order upon them
In what format are interim applications typically heard?
Of one hour or less - telephone
Exceptions may be made where an application is made without giving notice to the other party
What type of costs orders can be made?
Claimant/Defendant’s costs - the party named in the order is entitled to their costs within 14 days
Costs in the case - the ultimate loser will pay these once the winner is decided
No order as to costs - each party to bear their own costs
What is a summary judgment?
Where a defendant files a weak defence and the claimant can bring that matter to an early conclusion (or vice versa).
When will a court consider granting a summary judgment?
If the party has no real prospect of succeeding on the claim, defence or issue
There is no compelling reason why the case or issue should be disposed of at a trial
When can an application for summary judgment be made?
At any time.
How much notice should the respondent be given of an application for summary judgment?
14 days notice of the hearing
They must file and serve any written evidence at least 7 days before the hearing.
What possible orders can a court make in response to an application for summary judgment?
Approve judgment
Strike out/dismiss the claim
Dismiss application for summary judgment
A conditional order
When may a conditional order be granted by the court in respect of a summary judgment?
Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order.
What are interim injunctions?
An injunction granted prior to the trial.
Who may apply for an interim injunction?
Any party at any time after proceedings have commenced or prior to proceedings in exceptional circumstances.
What is a breach of injunction known as?
Contempt of court
When considering whether to grant an interim injunction, what guidelines will the court refer to? (4)
There is a serious question to be tried
Damages are an adequate remedy for either side e.g. damages would not be an adequate remedy where a defendant’s farm is being closed.
The balance of convenience lies in favour of granting or refusing the injunction
Whether there are any special factors
What is the cross-undertaking in an interim application?
An applicant must undertake to pay the court any damages the respondent sustains if it transpires that the injunction should not have been granted.
When can an interim injunction be granted without notice?
Freezing injunctions - refrains a party from removing assets from the jurisdiction
Search orders - compels the respondent to allow their premises to be searched by the applicant.
Where should an interim injunction application be made?
To a High Court judge with supporting evidence of an affidavit
What is an interim payment?
Payment on account of any damages, debt or sums prior to the trial.
When can an interim payment application be made?
Until after the period for filing the acknowledgement of service.
Can a party make more than one interim application?
Yes
When should an application notice be served for an interim payment application?
At least 14 days before the hearing date with evidence.
What evidence should be provided with an interim costs application?
The amount requested and what it will be used for
The sum of money likely awarded at final judgment
Reasons for believing the CPR grounds are satisfied
How long does a respondent have to file evidence they wish to rely on for an interim payment application hearing?
At least seven days before the hearing.
What are the grounds for an interim payment application to be granted?
Defendant has admitted liability
Claimant has obtained a judgment
The court is satisfied that if the case went to trial that the claimant would obtain judgment (but the bar is high here)
