WS4 - Interim Application Flashcards
Interim Applications - Introduction: What is the relevant sections of the CPR?
- CPR 23 - Interim Applications
- 23A PD - Interim applications
- CPR 2.8 - Counting Time
- 44 PD 9 - Statements of costs
Interim Applications - Introduction: What is an interim application?
Applications for orders or directions made to court, usually in interim period between commencment of proceedings and trial, although some can be made prior to proceedings.
Interim Applications - Introduction: What ate examples of interim applications?
They are varied but include:
* Extending time period for taking particular step in the proceedings such as filing defence
* Applying to amend a statement of case
* Requiring the other party to provide further information
* Requesting specific disclosure of a document
* Seeking permission to rely on expert evidence
Interim Applications - a) Procedure: What approach must parties take?
- Reasonable approach in line with overriding objective to try agree matters to avoid need to application or to make it less contentious.
- Note - As soon as it becomes apparent that it is necessary for desirable to make an application, party should apply - 23A PD 2.7.
Interim Applications - a) Procedure: What are parties required to do?
- Must bunch their interim applications - 23 PD 2.8
- If a hearing has been fixed for something, parties must issue any necessary application ensuring outstanding matters get dealt in single hearing where possible.
Interim Applications - a) Procedure: What is each step of the procedure?
The party making the application is the applicant and other party respondent, irrespective of their titles in main proceedings.
Interim Applications - a) Procedure - i) Step 1 - Issuing the app: How does the process of making an application begin?
Applicant files an application notice (Form N244) at court stating under CPR 23.6:
* Who is making the application
* What order the applicant wants
* Why applicant is asking for that order
* What information the applicant relies on in support
With the court fee to the court in which the main claim is presently dealt with, or in case of pre-action application, the one likely to deal - CPR 23.2
Interim Applications - a) Procedure - i) Step 1 - Issuing the app: When and what evidence is sometimes required?
For some apps, CPR will provide evidence must support the application, however, even where not required, it is still advisable to provide - 23A PD 9.1 and evidence can be given in three ways:
* In the application notice itself (Part C and if so, statement of truth must also be completed 23A PD 9.7.)
* By referring to existing statements of case
* In a witness statement (or if required an affidavit)
Interim Applications - a) Procedure - i) Step 1 - Issuing the app: What must the applicant then do?
Applicant sends application notice, evidence and draft ofer (should also file draft order setting out terms its seeking) to court which then issues application and provides notice indicating time and date hearing to be heard.
Interim Applications - a) Procedure - ii) Step 2 - Serving the app: What must then be done with notice, note from court, evidence and draft order?
Must be served on the other party after application has been issued by the corut - CPR 23.7.
Interim Applications - a) Procedure - ii) Step 2 - Serving the app: Who serves the application?
Court can, however, in practice the applicants solicitor usually serves.
Interim Applications - a) Procedure - ii) Step 2 - Serving the app: What are the time limits for serving an application?
- Must be as soon as praciable after application filed and not less than three clear days before application is to be heard - CPR 23.7. (See WS2 for counting time under CPR 2.8.
Note - This is general rule and some applications have own special time limits such as sumary judgements - CPR 24.
Interim Applications - a) Procedure - iii) Step 3 - Further Evidence: What may the respondent wish to do?
- File evidence in form of a witness statement (or if required by CPR, an affidavit)
- Evidence must be filed and served as soon as possible 23 A PD 9.4 and in accordance with ant specific timings stated by court when it issued application notice.
Interim Applications - a) Procedure - iii) Step 3 - Further Evidence: What may applicannt wish to do?
- May wish to bring further evidence in reply to respondents evidence and must be filed and served as soon as possible 23 PD 9.5 and in accordance with any specific timings stated by court.
Interim Applications - a) Procedure - iii) Step 3 - Further Evidence: What must be served regarding costs?
Statement of costs not less than 24 hours before the hearing 44 PD 9.5.
Interim Applications - a) Procedure - iv) Step 4 - Hearing: What can court order?
- In accordance with overriding objective, court may order it takes place via telephone 23A PD 6 and 6, most commonly if hearing not expected to last more than an hour.
In exceptional cirucmstances, may order by video conference.
Interim Applications - a) Procedure - iv) Step 4 - Hearing: When can it be heard without meeting?
Possible to deal without hearing if CPR 23.8:
* Parties have agreed terms of the order (in which must sent in a consent order - which is order in agreed form, signed by each party.)
* Parties agree there should be no hearing or
* Court does not consider it appropiate.
Interim Applications - a) Procedure - v) Summary of process:
Interim Applications - b) Without Notice Applications: What is alternative procedure to “with notice” procedure above?
Make an application without notice (of the application notice on respondent)
This is only eprmitted if - 23A Pd 3:
* There is exceptional urgency such as remedy needed immediately
* Overriding objective best serviced by doing so
* All parties consent
* Court gives permission
* A court order, rule or practice direction permitsor
* A date for a hearing has been fixed, a party wishes to make application at that hearing and they do not have sufficient time to serve application notice, in thisc ase, party should still inform other party in court, if possible in writing as soon as possible of nature of application and reason for it.
Interim Applications - b) Without Notice Applications - i) Procedural Safeguards: What must applicant do to mitigate unfairness in application without notice?
- Must explain why no notice given
- Must draw to court attention arguments and evidence in support of (absent) respondents position.
- Must serve respodnent as soon as possible after hearing, whether or not court granted relief sought and this includes, application notice, evidence in support and order.
- Court order must contain a statement fo respodnents right to make an application to set aside or vary the order and this must be made within 7 days of the order being served on the other party - CPR 23.10.
Interim Payments - Introduction: What is the relevant sections of the CPR?
- CPr 25.6 - 25.9
- 25B PD
Interim Payments - Introduction: What is the definition of an interim payment?
Payment on account of damages, debt or other sums (except costs) which defendant may be held liable to pay claimant - CPR 25.1(1)(k)
Interim Payments - a) Purpose: Why may a claimant ask for an interim payment?
- To assist financially in interim period prior to settlement or trial such as a PI claim.
- Any payment would be made on account of damages
Note - Application is made for interim payments by C
Interim Payments - b) Conditions When will a court only make an order?
If any of following conditions satisfied:
* D has admitted liabiltiy to pay damages (or some other sum) to the claimant
* Claimant has obtained judgement against that defendant for damages to be assessed (or for a sum of moeny other than costs) to be assessed.
* It is satisfied that, if claim went to trial, claimant would obtain judgement for a substantial amount of money against D from whom he is seeking order for interim payment, whether or not they are onyl defednant or a number.
Interim Payments - b) Conditions - i) Evidence: What evidence must applicant for interim apyment provide?
25B PD 2.1 - Evidence must deal with the following:
* Reasons for believing conditions for making interim payment above satisfied.
* Sum of money for which final judgement is likely to be given
* Sum of money soguht by way of interim payment
* Items or matters in respect of which interim payment sought
* Any other relevant matters
* In claims for PI, details of special damages and past and future loss and
* In claims under Fatal Accidents Act 1976, details of the persons on whose behalf the claim is made and nature of the claim
Interim Payments - c) Procedure: What will claimant request voluntarily?
- Claimant will request voluntary payment from Defendant.
- If they do not agree, such as defending claim, claimant will then make application to court for interim payment. - CPR 25.7 and claimant can mkae more than one application for interim payment.
Interim Payments - c) Procedure: When can claimant not apply to court?
- Claimant can make voluntary request at any stage including pre-action.
But claimant cannot apply to court for interim payment before the end of period for D filing AoS - CPR 25.6(1)
Interim Payments - c) Procedure: What is court limited to on making interim payment
- Must not make interim payment of more than a reasonable proportion of likely amount of final judgement, considering any cotnrib, set off or counter claim - CPR 25.7
Interim Payments - c) Procedure: Will any payments be disclosed to trial judge?
Unless defendant agrees, interim payment made by defendant in court of proceedings (whether voluntarily or by court order) will not be disclosed to trial judge until all questions of liable and quantum decided.
Interim Payments - c) Procedure: What rules applies for making interim payment application?
Normal rules relating to itnerim applications - See above subject to modifications below:
Secuirty for Costs - Introduction: What are the main sections of the CPR?
- CPR 25.12 - 25.13
Secuirty for Costs - a) Purpose: What is secuirty for costs?
- Application made by person as defendant (applicant) who is concerned the claimant (respondent) will not be willing/able to pay defendants costs should claim be successfuly defended - CPR 25.12.
- For the court to order that security to be given which can be vairious ways but usually requires payment into court by C so funds avaiilable to meet any costs ordered later in D’s favour.
Secuirty for Costs - a) Purpose: When will an application be made and by who?
- Defendant against Claimant (usual case)
- Claimant against defendant in respect of counterclaim
- By a TP against a defendant in respect of additional claim - CPR 20.
Secuirty for Costs - b) Step 1 - Grounds: What must applicant satisfy before order for security for costs can be made?
- Having regard to all cirucmstances of the case, it is just to make an order - CPR 25.13(1)(a)
- One or more of prescribed conditions in the rules are satisfied - CPR 25.13(1)(b) and (2)
**Note - ** As with any application, court will also consider the overriding objective and if it would be dealing with case justly and proportionately in making order.
Secuirty for Costs - c) Step 2 - Conditions: What are the prescribed conditions for security for costs?
- C is a resident out of jurisdiction (but is not resident in a state bound by 2006 Hague convention) - CPR 25.13(2)(a)
- C is a company and there is reason to believe it will be unable to pay D’s costs if ordered - CPR 25.13(2)(c)
- C has taken tsteps in relation to its assets that would make enforcement of a costs order against it difficult - CPR 25.13(2)(d)
- C has chaged address since claim commenced with view to evading consequences of litigation - CPR 25.13(2)(e)
- Claimant failed to give an address in claim form - CPR 25.13(2)(e)
- Claimant is acting as a nominal claimant and ther eis reason to believe it will be unable to pay D’s costs if ordered - CPR 25.13(2)(f)
Secuirty for Costs - c) Step 2 - Conditions - i) Claimant resident out of jurisdiction: What is the meaning of resident?
- For an indicidual this is their habitual or normal residence
- For a company, this is where company’s central management and control is exercised and it is usually but not necessaily where it is incorporated.
Secuirty for Costs - c) Step 2 - Conditions - i) Claimant resident out of jurisdiction: What is the maning of out of the jurisdiction?
- This means not in England and Wales with the view it may be more difficult to enforce.
**Note - ** Security for costs is not available under this ground if C is resident ina state bound by 2006 Hague Convention which includes UK, all EU memberstates, Mexico, Singapore and Montenegro.
Secuirty for Costs - c) Step 2 - Conditions - ii) Impecunious claimant company: What are the requirements for this condition?
- Must be an impecunious company, not individual.
- Defendant must show a) Company inability to pay costs and b) the amount of the likely costs.
Secuirty for Costs - c) Step 2 - Conditions - ii) Impecunious claimant company: What is position for D showing company unable to pay?
- D must show company “will be unable” not may be unable.
- However, D does not have to show on balance of probabilties that C company unable to pay, they may be able to show there is reason to believe they will be unable even if company can show substantial evidence to contrary.
Secuirty for Costs - c) Step 2 - Conditions - iii) Courts Discretion: What does discretion mean even if prescribed condition made out?
The court is not obliged to give security even if made out, and will only be granted if satsified when having regard to all circumstances , that is just to make such an order.
Secuirty for Costs - c) Step 2 - Conditions - iii) Courts Discretion: What is the main consideration for courts discretion?
- Respondents ability to comply with any order for secueity for costs because they must not prevent claimant’s claim continuing on condition it is unable to fufill as this would breach claiamnts Art 6 Right to fair trial.
- Court must therefore balance potential injustice to claimant if prevented carrying on claim to injustice of defendant being at risk on costs if no secueity provided.
Reword and add in case law - Jirehouse
Secuirty for Costs - c) Step 2 - Conditions - iii) Courts Discretion: What are the other considerations for courts discretion?
In addition for R to comply with order, could will look at other factors such as - Sir Lindsay Parkingson v Triplan:
* If AOL by Defendant or substantial open offers (those court can be aware of) will make D’s applciation less likely to succeed.
* Delay also makes the application less likely to succeed as application should be made prompotly as soon as facts giving rise are known.
* If claim appears not genuine or little prospects, will make it more likely to succeed.
* If the Defendant has itself been responsible for the claimant’s financial difficulties, this will make it less likely to succeed.
* If it appears that defendant is using the application oppressively or to strifle a genuine claim by C, less likely to succeed.
Secuirty for Costs - c) Step 3 - Procedure: What normal rules apply?
Those rules relating to interim applications - see above.
Secuirty for Costs - c) Step 3 - Procedure: What should application be supported by?
Written evidence - CPR 25.12(2) and evidence normally given by way of witness statement which should cover:
* Ground relied on
* Factors in exercise of courts discreiton
* Likely costs to trial
* Amount fo security requested - This is entirely at courts discretion and court will fix a sum it thinks just taking into account amount of D’s likely cost, either for whole action or up to point in time, as well as pre-action or future costs and other facts such as any delays
Secuirty for Costs - c) Step 3 - Procedure: What are the type and timing of security?
Security can be given by:
* Payment into court
* Payment to D’s solicitor
* Bank Guarantee
* Undertaking to pay costs
Interim Injunctions - Introduction: What are the relevant sections of the CPR?
- CPR 25.1 to 25.4 - Injunction remedies
- 25A PD 1-5.5 - Interim injunctions
Interim Injunctions - Introduction: What is an injunction/interim injunction?
- Injunction - An order requiring party to do or refrain from doing a given act and breach of an injunction is potentially punishable as contempt so can result in fine and/or imprisonment.
- Interim Injunction - This is temproray measure taken at an early stage in the proceedings (including pre-action) before trial and before any final decision to restrain respondent from causing irreparable or immeasurable damage to applicant by continuing conduct or ceasing conduct that led to dispute.
Interim Injunctions - a) Types: What are the three types of interim injunction?
- Prohibitory Injunction - Requires R to refrain from doing an act
- Mandatory Injunction - Requires R to do a specific act
- Quia timet injunctions - Allows both prohibitory and mandatory injunctions where wrong threatened but not yet comitted.
Interim Injunctions - b) Guidelines for court: When may injunction be granted and what will court consider?
- When just and convenient
- American Cynamid v Ethicon - Lord Diplock laid down Cynamid guidelines on how courts should exercise discretion to grant interim injunctions which is summaries in image below.
Interim Injunctions - b) Guidelines for court - i) Step 1: Is there serious quesiton to be tried?: What is an injuction not and what does this mean?
- Not a cause of action, but a remedy so applicant cannot sue for an injunction and must have pre-existing cause of action.
- Court must there be satisfied there is seirous question to be tried which in many cases is not difficult but if this cannot be met, injunction will generally be refused.
Interim Injunctions - b) Guidelines for court - i) Step 2: Would damages be an adequate remedy for party injured by grant or or failure to grant injunction: What will court consider from applicants perspective?
- Court generally refuse if applicant could be adquately compensated by damages for any loss cause by refusal to grant. But they will be indequate if respondent has no means of paying them, or harm caused is irrepairable, cannot be quantified or is serious and likel;y to continue
Interim Injunctions - b) Guidelines for court - i) Step 2: Would damages be an adequate remedy for party injured by grant or or failure to grant injunction: What will court consider from respondents perspective?
Court will ask itself if R can be adequately compensated by applicant if it transpires injunction was wrongly granted and if so, then this suggests it should be granted.
Interim Injunctions - b) Guidelines for court - i) Step 3: Balance of convenience: What is the balance of convenience?
If damages not adquate then court will consider range of factors to balance/lesser risk of injustice of granting or not granting the injunction.
Interim Injunctions - b) Guidelines for court - i) Step 3: Balance of convenience: What principles apply?
Injunction is equitable remedy so equitable principles apply, including:
* Injunction will not be obtained if it would serve no practicable purpose
* Court might refuse to grant if applicant has not come to court with clean hands
* Excessive delay may lead to refusal of the application
But it is also discretionary remedy so no automatic right to injunction just because guideliens met.
Interim Injunctions - c) Procedure: What is the starting point for an application for interim injunction
- It is same as any other interim application - See above and also must be supported by written evidence setting out facts to justify relief sought CPR 25.3(2) keeping in mind guidelines and considerations above.
Note - As interim remedy with serious consequences, there are some additional procedural cosndieraitons.
Interim Injunctions - c) Procedure i) Undertakings: What will court require from applciant in granting injunction?
- Only if applicant offers cross-undertaking to pay damages to R for any loss sustained by injunction if it is subsequtnly held the applicant ought to not have been granted the interim injunction.
- This is made to the court and is there to protect respondent but court can also require an undertaking to be given for protection of any other person who may usffer loss due to order - 25 A PD 5.1
Interim Injunctions - c) Procedure ii) Without Notice Safeguards: What if application made without notice?
- Must in its evidence state why notice has not been given - CPR 25.3
And also make full and frank disclosure of all matters of fact or law relevant to the application.
Interim Injunctions - c) Procedure ii) Without Notice Safeguards: What if application made without notice and injunction granted?
- Granted initially for limited period only.
- Court will fix a second hearing called the return date and R will be given notice of that hearing and opportunity to attend and make representation.
Interim Injunctions - c) Procedure ii) Without Notice Safeguards: What orders can court make at second hearing?
- Maintain the order (To keep it in place)
- Discharge the injunction or vary the terms
- Enforce the applicants undertaking in damages if it appears it shouldn’t of been granted.
- Accept an undertaking by R not to do the acts in question, in place on injunction
Interim Injunctions - c) Procedure - iii) Applications before claim issue: When will a court only grant application beofre claim form issued?
25.2(2)(b): Court will only grant if:
* Urgent, or
* It is otherwise desirable to do so in interests of justice.
Summary Judgement - Introduction: What are the relevant sections of CPR?
CPR 24
24 PD
Summary Judgement - Introduction: What is summary judgement?
It enables to court to dispose of claims or issues without need for full trial - CPR 24.1.
Summary Judgement - a) Purpose: What does summary judgement allow for?
- If granted, issue no longer consdered at trial, saving costs.
- It furthers overriding objective as it allows court to deal with weak cases or issues proportionately and expeditiously.
- Either party can apply if it considers other parties position in claim is sufficiently weak.
Summary Judgement - a) Purpose - i) Difference between strike out: What is the difference?
- Considerable overlap with many cases falling with strike out CPR 3.4 and summary judgement CPR 24, so often appropiate to combine application.
- Court can strike out whole or part of statement of case with no reasonable ground for bringing or defending claim or corut may give summary judgmment against C or D where no prosepct of suceeding of claim or defence.
Summary Judgement - a) Purpose - ii) Difference between default judgement: What is difference?
- Default judgement is consequence of D failing to respond to claim and is therfore procedural and the courts will nto cosnider the merits of case in default judgement.
- Default only claimant can apply whereas summary judgement can be by both and also court can use summary judgement off own initative if it believes claim weak.
Summary Judgement - b) Grounds: What are the grounds for summary judgement?
CPR 24.3:
* Claimant has no real prospect of succeeding on claim or issue or Defendant has no real prospect of defeneding the claim, AND
* There is no other compelling reason why case should be disposed of at trial.
Summary Judgement - b) Grounds: What does “no real prospect mean”
- That the position is false or imaginary.
To defeat the application, R does not have to show case will probably succeed, just some change even if it is improbable.
Summary Judgement - b) Grounds: What are examples of compelling reasons why case should proceed to trial?
- Defendant needs more time to investigate
Expert evidence is required
Multi-Party Litigation
Scrutiny of key documents required
Defendant has right to a trial by jury e.g fraud
Summary Judgement - b) Grounds - i) Evidence required: What must evidence in support of application address?
The grounds set out above and application notice or evidence must also:
* Identify any point of law or provision in document on which applicant relies and
State application is made because applicant believes on evidence, repsondent has no real propsect of sucess and knowns no other compelling reason why it should go to trial.
Summary Judgement - c) Procedure - i) Who can apply and when: When can C/D apply?
- Claimant can apply after D has filed AoS or defence (or earlier with courts permission CPR 24.4) but if C failed to comply with pre-action protocol then usually not until after defence filed or time limit to serve expired.
- Defendant can apply any time after proceedings have commcened.
- Court can also fix a hearing of its own initiative - CPR 1.4(2)(c) and CPR 3.3
Summary Judgement - c) Procedure - i) Who can apply and when: What is ideal positon for applying?
Before or at same time as Directions questionaire to avoid unnecssary costs - 26 PD 5.3(1) and if made at same time, court will delay allocation until after summary judgement hearing.
Summary Judgement - c) Procedure - ii) Effect of applciation: What is effect of application?
Creates pause in proceedings while application decided so that:
* If claimant applies for summary judgement before D serves defence, the time for defendant to file is extended until after - CPR 24.4(2)
* If defendant applies for summary judgement, defendant does not have to file AOS or defence until after.
Summary Judgement - c) Procedure - iii) Process: What are normal rules for interim applciation?
The normal rules apply for summary judgement as with inteirm applicaitons, with modification as per below:
Summary Judgement - c) Procedure - iv) Application Notice: What must notice include?
- A statement that is an application for judgement under P24 and
- Direct repsondents attention to the cPR which require repsondent to file and serve any evidence at least 7 days before summary judgement hearing
Summary Judgement - d) Potential Orders: What are the potential orders the court can make?
- Dismisall of the application- Application fails and issue continue to trial with ourt directions to progress claim forward.
- Dismissal of claim - If D applies and succeeds, claim dismissed and D won.
- Judgement on the claim - If C applies and succeeds, judgement entered and claimant has won.
- Conditional Order - Judge has decided repsodnent may succeed but it is improable that it will do so, court refuses summary judgement and allows R to continue only subject to conditions ordered by the court, such as paying sum into court.
**Note - **While above is for whole claim, can relate to specific issue which same pricniples apply.
