Workshop 4: Interim Applications Flashcards
1
Q
What is meant by ‘interim application’?
A
An application from claimants made to the courts in the interim or middle of trial
2
Q
What can interim applications be made for?
A
- Extension of time for proceedings
- Party requesting further documentation/information from other party
- Application for disruptive interim remedies
- Seeking permission to rely on expert evidence
- Applying for amendment of statement of case
3
Q
What is the purpose of a ‘summary judgement’?
A
To enable the court to dispose of claims without the need to go to full trial
4
Q
Why may a ‘summary judgment’ be called?
A
Because one party’s position in relation to that claim/issue is very weak
5
Q
What is ‘interim injunction’?
A
An order of the court requiring a party to do or refrain from doing a given act
6
Q
When should an interim application be made?
A
As soon as it becomes apparent that it is necessary or desirable
7
Q
What is the name of the party making the application?
How does this affect the names of what the claimant or respondent are referred to during proceedings?
A
They are called the ‘applicant’ and the other party is called the ‘respondent’
This is irrespective of their name in proceedings
8
Q
What is the name of the application the applicant begins to make an interim application?
A
Form N244
9
Q
What are the four things that make up an application from the applicant?
A
- Application notice
- Evidence
- Draft order
- Fee
10
Q
What is a ‘draft order’ that should be filed by the applicant?
A
An order which sets out the terms it is seeking
11
Q
What are the four main stages of making an interim application?
A
- Issue
- Service
- Further evidence
- Hearing
12
Q
What must be done with the four components of an issued interim application with the other party?
A
It must be served on the other party after the application has been issued by the court
13
Q
What is the time frame whereby the application is filed and served to the other party from when the application is to be heard?
A
No less than three clear days before the application is heard
14
Q
When must further evidence within the four stages of an interim application be filed and served from both the applicant and respondent, should both parties wish to do so?
A
As soon as possible and in accordance with any specific timings stated by the court
15
Q
When should a ‘statement of costs’ in relation to the application be filed and exchanged?
A
No less than 24 hours before the hearing
16
Q
Which three circumstances may the dealing of an interim application take place in absence of a hearing?
A
- Parties have agreed terms of order
- Parties agree there should be no hearing
- The court does not consider hearing appropriate
17
Q
What will the court consider when deciding to deal with the interim application hearing remotely or partially remotely?
A
The overriding objective
18
Q
Where will the interim application hearing take place if the hearing is expected to last 2 hours or less?
A
Remotely
19
Q
What does it mean if you make an interim application ‘without notice’?
A
It is made without serving the application notice on the respondent/opposing party
20
Q
When may interim applications without notice be made?
A
- Exceptional urgency (e.g., remedy is needed immediately)
- Overriding objective is best furthered by doing so
- All parties consent
- Court gives permission
- Court order, rule or practice direction permits
- Insufficient time to serve application notice after date for hearing has been fixed and party wishes to make application at that hearing
21
Q
What are the procedural safeguards for ‘without notice’ applications?
A
- Application must explain why no notice is given
- Application must draw (absent) respondents position, of their evidence and arguments
- Applicant must serve repsondent as soon as after the hearing, even if the court didn’t grant the sough relief
- Coiurt must contain statement of respondent’s right to make an application to set aside or vary the ordr
22
Q
What is the time frame for a respondent setting aside or varying the order following the ‘without notice’ hearing?
A
Such applications must be made within 7 days of the order being served on the other party
23
Q
What are the documents the applicants must serve on the respondent after a ‘without notice’ hearing?
A
- Application notice
- Evident in support
- The order
24
Q
What happens if a summary judgement is granted on an issue?
A
The issue is no longer considered at trail
25
Who can apply for a summary judgement?
When one party considers the other's sufficiently weak in relation to the claim or particular issues
26
What's the difference between a 'summary judgment' and 'strike out'?
Summary judgment
- Where party has no real prospect of succeeding on their claim/defence, for the court to dispose of a claim/issue without the need for trial
Strike out
- Court strikes out party or whole of statement of cause which, for example
a) disclose no reasonable ground for bringing or defending claim
b) abuse of process/likely to obstruct just disposal of proceedings
27
What's the difference between a 'summary judgment' and a 'default judgement'?
Summary judgement
- Where party has no real prospect of succeeding on their claim/defence, for the court to dispose of a claim/issue without the need for trial
Default judgement
- Consequence when defendant fails to respond to a claim in for form of (in according with CPR time limits:
a) failing to file acknowledgement of service
b) failing to acknowledge defence
28
How can a 'default judgement' be obtained?
By the claimant requesting or application, subject to nature of claim
29
What are the two grounds for a 'summary judgement'; for the court to dispose of a claim/issue without the need for trial?
1a. Claimant has no real prospect of succeeding on the claim or issue *or*
1b. Defendant has no real prospect of successfully defending the claim or issue
and
2. There is no other compelling reason why the case or issue shou;d be disposed of at trial;
30
What is meant by 'no real prospect' when considering the grounds for a 'summary judgement'?
That there is some chance succeeding is improbably
The respondent does not have to show that its case will probably succeed
31
What are some examples (non-exhaustive list) of 'compelling reasons' when considering the grounds for a 'summary judgement'?
1. Defendant needs more time to investigate
2. Expert evidence is required
3. Multi-party litigation
4. Scrutiny of key documents is required
5. Defendant has a right to trial by jury e.g., fraud
32
When can a claimant apply for a 'summary judgement' without needing the courts permission?
After the defendant has filed an acknowledgement of service/defence
33
When can a defendant apply for a 'summary judgement'?
Anytime after proceedings have commenced
34
When can the court apply for a 'summary judgement'?
Can fix hearing on its own initiative
35
How does an application for an 'interim application' different from that of a 'summary judgement'?
Timing
36
How many days before the hearing must a respondent file and serve further evident in the application for a 'summary judgement' and 'interim payment'?
At least 3 days
37
How many days before the hearing must a applicant file and serve further evident in the application for a 'summary judgement' and 'interim payment'?
At least 7 days
38
How many days before the hearing must a the application for a 'summary judgement' and 'interim payment' be filed and served?
At least 14 days before the hearing
39
What are the potential orders the court may give at the summary judgment hearing?
- Dismissal of the application
- Judgment on the claim
- Conditional order
- Dismissal of the claim
40
When can a claimant apply for a 'summary judgement' needing the courts permission?
Before the defendant's acknowledgement of service or defence
41
Who is an application for 'interim payments' made by?
The claimant
42
What is an 'interim payment'?
Sum of money advanced to claimant before final settlement
43
What is the purpose of an 'interim payment'?
To assist the claimant in the interim period before settlement/trial in their claim
44
When will the court make an order for an 'interim payment'?
- Defendant has admitted liability to pay damages (or other sum of money) to claimant
- Claimant has obtained judgement against defendant for damages to be assessed
- It's been satisfied that claimant would obtain judgement for substantial amount of money against defendant they're seeking interim payment from
45
What must the evidence submitted for an applicaiton for 'interim payment' address?
- Reasons for believing conditions for making interim payment are satisfied
- Sum of money for which final judgment is likely to be given
- Sum of money sought by way of interim payment
- Other relevant matters
46
What would the claimant seeking an interim payment need to do before applying to the court for one?
Make a request for a voluntary payment
47
When can a claimant not make an application to the court for an interim payment?
Before the end of the period of the defendant filing an acknowledgment of service
48
When can the claimant request a voluntary interim payment from the defendant?
At any point in the proceedings
49
What must the court not make an interim payment of more than?
A reasonable proportion of the likely amount of the final judgment (CPR 25.7)
50
Why may a 'security for costs' application be made?
When the applicant is concerned that the respondent will not be willing/able to pay for defendant's costs should the claim be successfully defended
51
Who is the applicant and the respondent in an application for 'security for costs'?
Applicant - defendant
Respondent - claimant
52
Which three groups of people can make an application for 'security for costs'?
1. Defendant against claimant (usual)
2. Claimant against defendant in respect of counterclaim
3. Third part against defendant in respect of an additional claim
53
What is the common way the court may required security for costs to be given, amongst the various ways?
Requiring a payment into the court by the claimant to meet costs order later made in favour of defendant
54
Which two matters must the defendant satisfy before an order for security for costs can be made?
1. Having regard for all the circumstances of the case, it is just to make an order
2. One or more of the prescribed conditions in CPR 25.13 are satisfied
55
What are the prescribed grounds for security for costs?
1. Claimant is resident out of the jurisdiction
2. Claimant is a company and theres reason to believe it will be unable to pay defendant's cost if ordered to do so
3. Claimant has taken steps in relation to its assets to make enforcement of a costs order against it difficult
4. Claimant has changed address since commencement of claim with view of evading consequences of litigation
5. Claimant failed to give address in claim form
6. Claimant acting as a nominal claimant
56
What is meant by the 'resident' and 'out of the jurisdiction' prescribed condition?
Resident - habitual or normal residence
Out of the jurisdiction - outside of England and Wales
57
What must the defendant show when trying to prove the defendant is a company may be unable to pay order of costs if ordered to do so?
a) Company's inability to pay costs (must be a definite 'will' be unable to pay, not 'may' be unable to pay
b) The amount of the likely costs
58
What are some examples of the claimant/respondent taking steps to move their assets to make enforcement difficult if called to do so?
- Overseas transfer
- Dissipation of assets
- Transfer into names of third parties
- Transfer to place unknown to the defendant
59
What are the other ways secuirty for security of costs can be given?
- Payment into the court
- Payment to the defendant's solicitor
- A bank guarantee
- An undertaking to pay costs
60
How is the decision for the amount of security for costs decided?
At the total discretion of the court
61
What is an injuction?
Order of the court requiring a party to do or refrain from a given act
62
What may a 'breach of injunction' be punishable as?
Contempt of court and can result in a fine and/or imprisonment
63
What is an 'interim injunction'?
Temporary measure to restrain respondent from causing damage to applicant by continuing conduct or ceasing conduct that has led to the dispute
64
What point can an interim injunction be made?
At early stage of proceedings
Before trial
Before final decision on the merits of either party's case is made
65
How long does an 'interim injunction' last?
Until trial or until further order is given
66
What are the three main types of injunctions?
1. Prohibitory injunction
2. Mandatory injunction
3. Quia timet injunctions
67
What does a 'prohibitory injunction' require?
The respondent to refrain from doing an act
68
What does a 'mandatory injunction' require?
The respondent to do a specific act
69
What does a 'quia timet injunction' allow?
Both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed
70
What are the three steps in the 'American Cyanamid guidelines' that should be taken when the court exercises it discretion to grant an interim injunction?
1. Is there a serious question to be tried?
2. Would damages be an adequate remedy for a party injured by the court's grant or, or failure to grant, an injunction?
3. Where does the balance of convenience lie?
71
Is an injunction a cause of action or remedy?
Remedy
72
Why would the court refuse an interim injunction when considering from the applicant's perspective first?
If the applicant could be adequately compensated by damages for any loss caused by the refusal to grant interim application
73
What does considering the 'balance of convenience' when considering whether to grant an interim injunction?
Considering whether damages wouldn't be adequate for either party
74
What will the court do if it deems that damages wouldn't be adequate for either party in considering the 'balance of convenience'?
It will consider factors to ascertain if granting the injunction carries the lesser risk of injustice
75
What are the equitable principles that apply in ensuring the award of an interim injunction is an 'equitable remedy'?
1. The injunction will not be obtained if it didn't serve a practical purpose
2. Court might refuse to grant injunction if applicant didn't come to court with 'clean hands'
3. Excessive delay may lead to refusal of application
76
What two further contextual regards should be had in addition to the American Cyanamid guidelines in the granting of an interim injunction?
1. Equitable and
2. Discretionary remedy
77
What does an interim injunction mean when it's referred to as a 'discretionary remedy'?
It does not have to be granted as right just because the American Cyanamid guidelines have been met
78
What must the application for an interim injunction be supported by?
Written evidence when setting out the facts to justify the relief sought
79
What must the evidence include if the application for interim injunction if the application is made without notice?
The reason why notice has not been given
80
What are the additional procedural considerations that need to regarded in addition to the normal interim application procedural steps?
1. Cross undertaking in damages
2. Without notice safeguards
3. Application before a claim is issued
81
What does the court require the applicant to do regarding undertakings for the granting of an interim injunction?
To offer a cross-undertaking stating that they will pay for any loss sustained as a result of the interim injunction if the applicant ought not to have been granted it
82
How long are interim injunctions granted for?
Initially, a limited period only
Then the court court fixes a second hearing called the 'return date'
83
What must the applicant's legal representative do following a hearing of an application for interim injunction?
Prepare full note of the hearing and serve it to the respondent, with notice, without delay to ensure they know what they're dealing with at the next hearing
84
When will the court grant an interim injunction in exceptional circumstances, even before a claim form has been issued?
When the matter is either:
a) Urgent
b) Desirable to do so in the interests of justice
85
Who does the applicant make the cross-undertaking to?
The court
