W4 MCQ

Question 1

What is an Interim Application?

Answer 1

• An applications for orders or directions made by the court.

Question 2

When should an Interim Application be made?

Answer 2

As soon as it becomes apparent that it is necessary or desirable to make the application, the party should apply.

Question 3

What is the Procedure for an Interim Application?

Answer 3

1. Issue
2. Service
3. Further Evidence
4. Hearing

Question 4

What is Involved in the issue for the procedure of an Interim Application?

Answer 4

• Application Notice
• Supporting Evidence
  -Draft Order
  -Fee

Question 5

What is Involved in the service for the procedure of an Interim Application?

Answer 5

-Application Notice
-Supporting Evidence
-Draft Order
-Notice Hearing Date

Question 6

If an Applicant makes a standard with notice interim application. what is the timeframe within which the applicant must serve a copy of the application notice and supporting documentation on the respondent?

A. As soon as practicable but at least 3 clear days after issuing the application notice.

B. Not less than 3 clear days before the hearing

C. As soon as practicable bit not less than 3 clear Days before the hearing.

D. As soon as practicable before the hearing.

E. Not less than 14 clear days before the hearing.

Answer 6

C. As soon as practicable bit not less than 3 clear Days before the hearing.

If an applicant makes a standard with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as practicable but not less than 3 clear days before the hearing (CPR 23.7).

Question 7

The directions order confirms that witness statements are due to be exchanged in 5 days’ time. The applicant wishes to apply to the court for extra time to exchange witness statements. The parties have been unable to agree an extension of time. How would the applicant make an interim application to apply for an extension of time to exchange witness statements?

A. With notice by filing at court an application notice and a witness statement and paying a fee.

B. Without notice due to the urgency.

C. Without notice as the object of the order would be defeated by providing notice.

D. With notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee.

E. With notice by filing at court an application notice, a witness statement and a draft order and paying a fee.

Answer 7

D. With notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee.

Question 8

How, if at all, will a respondent know what evidence has been put forward by the applicant in support of a without-notice application?

A. The respondent will not know what evidence has been put forward in support of a without-notice application

B. The evidence will be served on the respondent before the hearing.

C. The evidence will be served on the respondent after the hearing

Answer 8

C. The evidence will be served on the respondent after the hearing

The applicant must serve the application notice, evidence in support and order on the respondent as soon as possible after the hearing (CPR 23.9).

Question 9

When is the first opportunity a claimant can apply for summary judgment against the defendant without needing the court’s permission?

A. Any time after proceedings have commenced.

B. After the claimant has filed particulars of claim.

C. After the defendant has filed an acknowledgment of service.

D. At the same time as filing the directions questionnaire.

E. After the defendant has filed an acknowledgment of service or a defence.

Answer 9

E. After the defendant has filed an acknowledgment of service or a defence.

The correct answer is the claimant can apply for summary judgment ‘after the defendant has filed an acknowledgment of service or a defence’ (CPR 24.4). To apply before this, the court’s permission would be needed. An incorrect answer is ‘after the defendant has filed an acknowledgment of service’ as this is not the best answer; the defendant could choose to only file a defence which would then be the trigger for the first opportunity a claimant has to apply for summary judgment. An incorrect answer is ‘after the claimant has filed particulars of claim’ as the trigger is a step by the defendant, not the defendant. An incorrect answer is ‘any time after proceedings have commenced’; this is the rule for when the defendant can first apply for summary judgment, not the claimant. An incorrect answer is ‘at the same time as filing the directions questionnaire’; this is often an ideal time for either party to apply for summary judgment, but it is not the first opportunity.

Question 10

The claimant files a claim form and particulars of claim. The defendant files an acknowledgment of service indicating an intention to defend the claim. The claimant applies for summary judgment. Both parties attend the summary judgment hearing where the judge dismissed the application and makes a costs order. What order is the court most likely to make next?

A. Directions order for the defendant to file and serve its defence.

B. Order the parties to file a statement of costs.

C. Conditional order.

D. Order to set aside the summary judgment hearing.

E. Allocation to a track.

Answer 10

A. Directions order for the defendant to file and serve its defence.

The summary judgment application was made before the defendant filed its defence and therefore the time for the defendant to file its defence is extended until after the summary judgment hearing (CPR 24.4(2)). The court has made a decision on summary judgment for dismissal of the application and so the claim will continue. The court may give directions for the defendant to file and serve the defence as this has not already taken place. An order to set aside the summary judgment hearing is incorrect as there is nothing on the facts to suggest this is appropriate e.g. both parties attended the summary judgment hearing. A conditional order is incorrect as this type of order is an alternative outcome to the outcome already arrived at (dismissal of the application) – not an additional order. Allocation to a track is incorrect. Whilst the court will delay allocating the matter to a track until after the summary judgment hearing, it will want to see the defendant’s case (in the defence) first. Order the parties to file a statement of costs is incorrect. This would have happened 24 hours before the hearing (CPR 44 PD 9.5) rather than after the summary judgment hearing to enable the court to make an order for costs at the hearing.

Question 11

The claimant ordered 20,000 laptops from the defendant. The laptops malfunction. The claimant issues a claim against the defendant claiming that 20,000 laptops are faulty. The defendant files a defence. The claimant believes that the defendant is entirely at fault and applies for summary judgment. If the claimant’s summary judgment application is successful, which order is most likely to be made by the court?

A. Conditional order.

B. Judgment on the claim.

C. Dismissal of the application.

D. Dismissal of the Claim.

E. Judgement on part of the claim.

Answer 11

B. Judgement on the Claim

The claimant’s claim is in relation to 20,000 laptops (the entire order) and so, if successful on summary judgment, the claimant will get judgment on the claim and the entire claim is over. Dismissal of the claim is incorrect as this would be appropriate where the defendant successfully applies for summary judgment; it is the claimant who has applied here. Dismissal of the application is incorrect as this is appropriate where either the claimant or defendant’s application for summary judgment has failed, the summary judgment application is dismissed and the claim continues to trial. Conditional order is incorrect as there is nothing on the facts to suggest that the judge is not wholly convinced of the merits of one party’s case necessitating conditions ordered by the court. Judgment on part of the claim is incorrect because there are problems with the entire order of 20,000 laptops. There is nothing on the facts yet to suggest that part of the order is not faulty.

Question 12

The court must not make an interim payment of more than________________________ .

Choose the correct missing words to complete the sentence.

A. A reasonable proportion of the likely amount of the final judgment.

B. A reasonable proportion of the sum claimed by the claimant

C. 66% of the likely amount of the final judgment

E.A reasonable proportion of the estimated costs.

Answer 12

A. A reasonable proportion of the likely amount of the final judgment.

Question 13

Which of the following IS NOT one of the conditions on which an application for an interim payment can be based?

A. It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment.

B. The defendant has admitted liability to pay damages (or some other sum of money) to the claimant.

C. The claimant has obtained judgment against that defendant for damages to be assessed (or for a sum of money other than costs) to be assessed.

D. The defendant has no real prospect of successful defending the claim and there is no other compelling reason why the claim should be disposed of at trial.

Answer 13

D. The defendant has no real prospect of successful defending the claim and there is no other compelling reason why the claim should be disposed of at trial.

This IS NOT one of the conditions on which an application for an interim payment can be based. It is part of the rules relating to summary judgment. All the other answers are conditions on which an application for an interim payment can be based.

Question 14

The claimant has made a personal injury claim against the defendant. The court has ordered judgment on liability in favour of the claimant, but the amount of damages have yet to be assessed. The claimant would like an interim payment as soon as possible and so asks the defendant for an interim payment. What is the best course of action for the claimant if the defendant does not agree to voluntarily make an interim payment?

A. Apply to the court for an interim payment as the claimant has obtained judgment against the defendant.

B. Apply to the court for an interim payment as the claimant is entitled to an interim payment in a personal injury claim.

C. Apply to the court for an interim payment as if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant.

D. Do not apply to the court for an interim payment and wait until damages are assessed.

E. Apply to the court for an interim payment as the defendant has admitted liability.

Answer 14

A. Apply to the court for an interim payment as the claimant has obtained judgment against the defendant.

The best course of action for the claimant to take if the defendant does not agree to voluntarily make an interim payment is to apply to the court. The claimant must satisfy one of the prescribed conditions (CPR 25.7) and, on the facts, has done this as the claimant has obtained judgment against the defendant.

The other options were not the best course of action: * The claimant cannot apply to the court for an interim payment as, on the facts, the defendant has not admitted liability. * The claimant cannot apply to the court for an interim payment as you are not given any facts to suggest that if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant. * It is incorrect to say that a claimant is entitled to an interim payment in a personal injury claim. One of the prescribed conditions (CPR 25.7) must be satisfied in any type of claim. * It is not the best course of action to say ‘do not apply to the court for an interim payment and wait until damages are assessed’ because if one of the prescribed conditions (CPR 25.7) applies, the claimant has a choice to apply for an interim payment.

Question 15

You act for a claimant in a personal injury claim. The claimant was badly injured by the defendant in a road traffic accident several months ago. The defendant has admitted liability in its defence. The claim is now at the case management stage. The claimant has not yet been able to return to work due to injuries sustained in the accident and has used all their savings to live on since the accident. The claimant has to move into new rented accommodation and needs money for the deposit and general expenditure for food and travel. Can the claimant apply to the court for an interim payment from the defendant at this stage of the proceedings?

A. Yes, because the period for filing a defence has expired.

B. No, because the claimant cannot claim an interim payment during proceedings.

C. No, because a final judgment has not been made against the defendant.

D. Yes, because the period for filing an acknowledgment of service has expired.

E. No, because the claimant can only claim an interim payment pre-action.

Answer 15

D. Yes, because the period for filing an acknowledgment of service has expired.

The claimant can apply to the court for an interim payment from the defendant because the period for filing an acknowledgment of service has expired an application for an interim payment can be made after this stage of the proceedings has been reached (CPR 25.6).

The incorrect answers are: Yes, the period for filing a defence has expired; this is not the rule (CPR 25.6). No, because the claimant cannot claim an interim payment during proceedings; the intention of interim payments is to allow a claimant to seek financial assistance on account of damages in certain situations during proceedings (CPR 25.6). No, because the claimant cannot claim an interim payment pre-action; whilst the claimant can agree an interim payment with the defendant pre-action, it cannot make a court application for an interim payment at that stage. No, because a final judgment has not been made against the defendant; whilst this is one of the conditions for applying for an interim payment, it is not the only condition and if another of the prescribed conditions is met, this would not preclude the claimant from applying (provided the claimant also meets the relevant timing requirements)(CPR 25.6)

Question 16

The defendant must satisfy the court of two matters before an order for security for costs can be made. One or more of the prescribed conditions in the rules must be satisfied, and having regard to all the circumstances, it must be ________ to make an order.

Choose the correct missing word to complete the sentence.

A. Proportionate

B. Just

C. Necessary

D. Reasonable

Answer 16

C. Just

See CPR 25.13. It would be wrong to say that it must be ‘necessary’. Whether it is ‘reasonable’ and ‘proportionate’ will be relevant considerations, and part of considering what is ‘just’, but ‘just’ is the key concept.

Question 17

The claimant to a claim proceeding in the courts of England and Wales is a company with its registered office and central administration in North Carolina, USA. It has not got offices or assets anywhere outside of North Carolina, USA. You do not yet have access to its accounts in order to assess its financial situation. The defendant is a company registered in England and Wales which is currently in financial difficulties.

On the available facts, which condition, if any, could the defendant rely on to make an interim application for security for costs assuming that it is also able to satisfy the court that, in all the circumstances, it is just to make the order?

A. The defendant could rely on the condition that the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so.

B. The defendant could rely on the condition that the claimant is resident out of the jurisdiction.

C. The defendant could rely on the condition that the defendant is an impecunious company.

D. The defendant cannot rely on any of the conditions.

E. The defendant could rely on the condition that the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it.

Answer 17

B. The defendant could rely on the condition that the claimant is resident out of the jurisdiction.

As it is in North Carolina, USA which is not a State bound by the 2005 Hague Convention (CPR 25.13(2)(a)). The other options were incorrect: The defendant could not rely on the condition that the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so because although the claimant is a company, there is no evidence on the available facts that it is impecunious. The defendant could not rely on the condition that the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it because there is nothing on the facts to suggest that the claimant has taken any steps in relation to its assets. It cannot be said that the defendant cannot rely on any of the conditions because one does apply. The defendant could not rely on the condition that the defendant is an impecunious company because this is not a condition: all conditions are based on the claimant’s status/actions, not the defendant’s.

Question 18

The claimant company is a breakfast cereal manufacturing company. The claimant has issued proceedings to claim losses of £200,000 from the defendant, a grain supplier, for breach of contract. You act for the defendant who has submitted its defence. Yesterday, a leading food trade magazine published an article about the claimant’s inability to meet customer demand for breakfast cereal and that it is experiencing cashflow difficulties. The defendant has therefore today checked the claimant’s most recent annual accounts filed at Companies House which show a loss of £215,000.

What would be the most appropriate interim application that the defendant might make?

A. Interim payment

B. Security for costs

C. Extension of time to submit its defence

D. Interim mandatory injunction

E. Interim prohibitory injunction

Answer 18

B. Security for Costs

because, if successful, a security for costs order would require the claimant to pay a sum of money into court (or by some other manner) to protect the defendant should it successfully defend the claimant’s case and be awarded costs. The defendant wants this protection as it has reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so.

The other options were incorrect: Interim payment is incorrect because that is an application made by a claimant (for an interim payment on account of damages which the defendant may be held liable to pay). Interim prohibitory injunction is incorrect because the defendant does not need an order from the court to require the claimant to refrain from doing an act which is causing irreparable or immeasurable damage to the defendant . Interim mandatory injunction is incorrect because the defendant does not need an order from the court to require the claimant to do an act to avoid causing irreparable or immeasurable damage to the defendant. Extension of time to submit its defence (CPR 3.1) is incorrect because the defendant has already filed its defence and so does not need extra time to do so.

Question 19

The claimant and defendant are in dispute over which of them is the legal and beneficial owner of the voting shares in a company, Levison Limited (‘Levison’). Last week, the claimant obtained an interim injunction without notice, which prohibits the defendant from exercising the votes attached to these shares at a Levison shareholder meeting which is taking place next week. The claimant’s main argument for the injunction is that the defendant was intending to vote at the meeting in order to push through a resolution that will benefit the defendant’s expansion plans, but which would disadvantage the claimant. The defendant’s position is that, as the claimant actually owns a majority share in Levison aside from the disputed shares, the defendant’s vote would not have affected the outcome of the shareholder meeting. The with notice hearing is scheduled for tomorrow morning. Assuming the defendant’s statement is correct, which of the following outcomes is most likely at the with notice hearing?

A. The injunction will continue because the defendant should still not be exercising the voting rights attached to the disputed shares.

B. The injunction will be discharged and the court will accept an undertaking by the defendant not to do the act.

C. The injunction will be discharged at the eventual trial.

D. The injunction will be discharged at the with notice hearing, without any undertaking being required from the defendant not to do the act.

E. The injunction will continue because injunctions granted without notice are always expressed to last until trial.

Answer 19

D. The injunction will be discharged at the with notice hearing, without any undertaking being required from the defendant not to do the act.

The principle that an injunction will not be obtained when it would serve no practical purpose (‘equity does not act in vain’) would most likely mean that the injunction would be discharged at the with notice hearing and the court would also consider whether or not to award damages to the defendant pursuant to the claimant’s undertaking in damages.

If the defendant’s statement is correct, the other options are less likely. The court is less likely to discharge the injunction at the eventual trial as there is evidence to suggest the injunction is not required now (equity does not act in vain) and the court will choose the course that carries the lower risk of injustice when exercising the balance of convenience; the trial may be some time away. The court is less likely to maintain the injunction on the basis that the defendant should still not be exercising the voting rights attached to the disputed shares as there is evidence to suggest the injunction is not required now (equity does not act in vain) and the court will choose the course that carries the lower risk of injustice when exercising the balance of convenience. This court is less likely to maintain the injunction on the basis that injunctions granted without notice are always expressed to last until trial as this reasoning is incorrect; in fact, injunctions made without notice will almost always last until the with notice hearing (rather than trial), at which point the court will decide whether they should continue. The court is less likely to discharge the injunction and accept an undertaking by the defendant not to do the act; on the facts the defendant has not offered an undertaking (and still intends to vote) and the court cannot force a party to offer an undertaking.

Question 20

Your client is concerned that one of its competitors is about to launch a new product onto the market in infringement of your client’s patents and copyrights. Your client wishes to start civil proceedings for infringement and would like to apply for an interim injunction against the competitor to prevent the new product being launched. At the injunction hearing, if damages would not be an adequate remedy for your client, the applicant, what would the court consider next?

A. The court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages.

B. The court will next consider whether the defence has a real prospect of success.

C. The court will next consider whether there is a serious question to be tried.

D. The court will next consider the merits of the case.

E. The court will next consider where the balance of convenience lies. Please revisit the American Cyamamid guidelines in this element.

Answer 20

A. The court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages.

This is usually part of ‘step 2’ and if damages from the applicant’s undertaking would be an adequate remedy to the respondent, and if the applicant is financially able to satisfy any such undertaking, there are good reasons to grant an interim prohibitory injunction. Although the court may consider the other options at the injunction hearing, it is unlikely that they will be considered ‘next’ pursuant to American Cyanamid: The court will consider whether there is a serious question to be tried – the court would have already decided this step (step 1) before considering if damages are an adequate remedy because if this step cannot be met, the injunction will generally be refused. The court will consider where the balance of convenience lies – the court considers this step (step 3) if it cannot resolve an injunction application by finding the answer from step 2 (and, even though steps 2 and 3 are sometimes blurred, it would still be necessary for the court to consider whether the respondent would be adequately compensated before it can make any decision on the balance of convenience). The court will not separately consider whether the defence has a real prospect of success or the merits of the case at this stage: the court will consider whether there is a serious question to be tried as ‘step 1’, but after that, the key considerations are the adequacy of damages as set out above.

Question 21

Which of the following statements is correct in relation to the applicant’s cross-undertaking in damages in an application for an interim injunction?

A. The applicant makes the cross-undertaking in damages to the respondent

B. The applicant’s cross-undertaking in damages is considered alongside whether there is a serious question to be tried

C. The applicant’s cross-undertaking in damages can only be for the protection of the respondent

D. The grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages.

E. The court can order an applicant to make a cross-undertaking in damages

Answer 21

D. The grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages.

The other options are incorrect: The applicant makes the cross-undertaking in damages to the respondent – no, it makes the cross-undertaking to the court. The court can order an applicant to make a cross-undertaking in damages - no, the court cannot order any party to make an undertaking so here it is subject to the willingness of the applicant. The applicant’s cross-undertaking in damages can only be for the protection of the respondent – no, the cross-undertaking can be for the benefit of others that have suffered damage by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction. It depends on what the court requires. The applicant’s cross-undertaking in damages is considered alongside whether there is a serious question to be tried – no, the applicant’s cross-undertaking is usually considered as part of step 2 and sometimes 3 of the American Cyanamid. Serious question to be tried is step 1.