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4. Interim applications - Coggle Diagram
4. Interim applications
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Applications for orders or directions made to the court, usually in the 'interim' period between the commencement of proceedings and trial, although some interim applications can be made before the commencement of proceedings.
Summary judgment
Enables the court to dispose of claims or issues without the need for a full trial (CPR 24.1).
- Saves costs if summary judgment is granted on an issue that's no longer considered at trial;
- furthers the overriding objective; and
-either party can apply for summary judgment if it considers that the other party's position is weak.
Difference between summary and strike out
Judgment in default is consequence of defendant failing to respond to claim.
Grounds:
CPR 24.3:
- claimant has no real prospect of succeeding on the claim or issue; or
- the defendant has no real prospect of successfully defending the claim or issue; and
- no other compelling reason why case or issue should be disposed at trial.
Examples of compelling reasons:
- defendant needs more time to investigate
- expert evidence required
- multi-party litigation
- scrutiny of key documents is required
- defendant has a right to trial by jury (fraud)
Evidence required
Application notice or supporting evidence (witness statement) must also:
- identify any point of law or provision which the application relies; and
- state the application is made because the applicant believes that the respondent has no real prospect of success and knows of no other compelling reason why the claim/issue should be disposed at trial.
Procedure:
Claimant can apply for summary judgment after the defendant has filed an acknowledgement of service or defence (CPR 24.4)
- Defendant can apply any time after proceedings have commenced.
- court can fix a hearing of its own initiative (CPR 1.4(2)(c) and CPR 3.3).
Ideal - C/D should apply for summary judgment either before or at the same time as filing the directions questionnaires to avoid extra costs (26 PD 11).
- summary judgment creates a pause in proceedings
The application notice:
Must include -
- statement that it's an application for summary judgment under Part 24; and
- direct the respondent's attention to the CPR which requires the respondent to file and serve any evidence at least 7 days before summary judgment hearing (CPR 24.5)
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Interim payments
A payment on account of damages, debt or other sum (except costs) which a defendant may be held liable to pay a claimant. CPR 25.1(1)(k)
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Conditions to be satisfied
Court will only make an order where:
- defendant has admitted liability to pay damages.
- claimant has obtained judgment against that defendant for damages to be assessed to be assessed.
- if a claim went to trial, claimant would obtain judgment for substantial amount of money for who they are seeking an order for interim payment
- more conditions for possession of land or where claimant is seeking an order in a case where there's 2+ defendants.
Evidence
Must deal with the following (25B PD 2.1):
- reasons for believing that the conditions for making an interim payment are satisifed;
- sum of money for which final judgment is likely to be given;
- sum of money sought by way of an interim payment;
- items or matters in respect of which the interim payment is sought;
- any other relevant matters;
- PI: details of special damages and past and future loss; and
- under Fatal Accidents Act 1976, details of person on whose behalf the claim is made and nature of the claim.
Any documents in support of the application should be shown including in PI claims, the medical report (25B PD 2.1)
Procedure
- if seeking interim payment, make a request for voluntary payment from the defendant first.
- if defendant does not agree, the claimant should make an application to court for interim payment.
- claimant cannot apply to the court for an interim payment before the end of the period for the defendant filing an acknowledgement of service (CPR 25.6(1)).
Claimant can make more than one application for an interim payment order
- If claimant applies for an interim payment, normal rules;
- If the claimant applies for an interim payment, normal rules apply.
The court must not make an interim payment of more than a reasonable proportion of the likely amount of the final judgment, taking into account any contributory negligence, set off or counterclaim (CPR 25.7**)
Security for costs
An application made by a person in the position of a defendant who is concerned that the claimant will not be willing/able to pay the defendant's costs should the claim be successfully defended (CPR 25.12).
The court can order that security be given in various ways but it requires a payment into court by the claimant, so that those funds are available to meet any costs order later made in the defendant's favour.
Security for costs relates to costs of claims and not the level of damages:
An application can be made:
- By a defendant against a claimant
- By a claimant against a defendant in respect of a counterclaim
- By a third party against a defendant in respect of an additional claim (CPR 20)
Grounds:
Defendant must satisfy the court of 2 matters before an order can be made:
- Having regard to all the circumstances of the case, it is just to make and order (CPR 25.13(1)(a).
- One or more of the prescribed conditions in the rules are satisfied (CPR 25.13(1)(b) and (2).
Court will consider overriding objective and whether its dealing with the case justly and at proportionate cost.
Conditions:
- claimant is resident out of the jurisdiction (but not resident in a state bound by the 2005 Hague Convention) (CPR 25.13(2)(a)).
- claimant is a company and no reason to believe it's unable to pay defendant's costs if ordered to do so (CPR 25.13(2)(c).
- claimant has taken steps in relation to its assets that would make enforcement of a costs order against it difficult (CPR 25.13(2)(g).
- claimant has changed address since claim was commenced with a view to evading the consequences of the litigation (CPR 25.13(2)(d).
- claimant failed to give an address in the claim form (CPR 25.13(2)(e).
- claimant is acting as as a normal claimant and there is reason to believe it will be unable to pay the defendant's costs if ordered to do so (CPR 25.13(2)(f).
''Claimant resident out of the jurisdiction' condition:
Meaning of resident
Individual - habitual or normal residence
Company - central management and control is exercised and sometimes where incorporatedMeaning out of the jurisdiction
- Defendant may have difficulty enforcing any costs order if the claimant is not in England or Wales.
- If a claimant is resident in a state bound by 2005 Hague Convention, security for costs is not available.
- some reciprocal arrangements between UK, EU members states, Mexico, Singapore and Montenegro.
'Impecunious claimant company' condition
Defendant must show:
- company's inability to pay costs; and
- amount of the likely costs.
defendant must show that the company 'will be unable' to pay its debts when the order is made against it.
''Claimant moving assets' condition
- prevents injustice to a defendant where the assets available to enforce any order for costs have been or are beyond reach of enforcement.
Main consideration - court will take into account of the respondent to comply with any order for security for costs.Other considerations
Court will look at other factors:
- admission of liability by the defendant or substantial open offers will make the defendant's application less likely to succeed;
- delay also makes the application less likely to succeed - application should be made ASAP.
- a claim which appears not to be genuine or has little prospects, will make the defendant's application more likely to succeed;
- if defendant is responsible for claimant's financial difficulties, will make application less successful; and
- if defendant is using the application to stifle a genuine claim, makes the claim less likely to succeed.
Court's discretion
Security will only be granted by the court if:
- it is satisfied having regard to all the circumstances of the case, that it is just to make such an order (CPR 25.13(1)(a))
Procedure
- normal rules re interim applications apply.
- application notice should state the ground/enactment.
- must be supported by written evidence (CPR 25.12(2)):
- The ground
- The factors in the exercise of the court's discretion.
- The likely costs to trial.
- The amount of security requested.
Amount of security
- court will determine the amount as well as the way in which and the time the security is given (CPR 25.12(3)).
- amount of the defendant's likely costs;
- the security can be for the whole action or up to a point in time;
- the amount can cover costs incurred and future costs;
- deduction can be made for the likely reduction upon assessment of costs or the possibility of settling; and
- other factors - eg delay may mean that security is not given for costs already incurred but is given for future costs.
Type and timing of security
- payment into court
- payment to the defendant's solicitor
- bank guarantee
- undertaking to pay costs
Interim injunctions
Injunction: an order of the court requiring a party to do or refrain from an act. Breach is punishable as contempt of court, fine or imprisonment.
Interim injunction: temporary measure taken early stage in proceedings before trial and before any decision to restrain respondent from causing damage. Usually made in cases of urgency.
Perpetual injunction: final injunction that continues with no limitation of time.
Guidelines:
May be granted where it's just and convenient (s 37 Senior Courts Act 1981).
American Cyanamid Co v Ethicon Ltd (1975) - Lord Diplock set out guidelines known as 'American Cyanmid guidelines' and how courts should exercise discretion granting interim injunction
Step 1: Is there a serious question to be tried?
- An injunction is a remedy. Applicant can't sue for an injunction and applicant must have a pre-existing cause of action.
- court must be satisfied that it's not 'frivolous or vexatious' and 'there is a serious question to be tried'.
Step 2: Would damages be an adequate remedy for a party injured by the court's grant of, or failure to grant, an injunction?
Court will consider issue from applicant's perspective and might consider from respondent's perspective:
Step 2(a): Applicant's perspective - court will refuse if the applicant could be adequately compensated by damages for any loss caused by the refusal to grant interim injunction.
Step 2(b): Respondent's perspective: if an injunction is granted, respondent is going to be prevented from doing something until trial. Court will ask whether respondent could be adequately compensated by the applicant if injunction was granted incorrectly.
Step 3: The balance of convenience
- if it appears that damages would be adequate for neither party, court will consider a broad range of factors to figure out if the injunction carries less risk of injustice
Equitable and discretionary - guidelines state if the injunction is an equitable remedy so these principles apply:
- an injunction will not be obtained when it serves no practical purpose
- the court might refuse to grant an injunction if the applicant has not come to court with 'clean hands'; and
- excessive delay may lead to refusal of application.
Application must be supported by written evidence setting out facts to justify relief (CPR 25.3(2). If the application is made w/o notice, evidence must state why notice hasn't been given (CPR 25.3)
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Procedure:
- same as any other interim application, although:
- Undertakings
- applicant should offer a cross undertaking to pay damages to the respondent for any loss sustained. Made to the court.
- Without notice safeguards
-can be made without notice if justified. Will be granted for a limited period and court will fix a second hearing 'return date'. Court can make the following orders:
- maintain order
- discharge the injunction/vary the terms
- enforce the applicant's undertaking in damages if injunction should not have been granted
- accept an undertaking by the respondent not to do the acts in question, in place of injunction.
- Applications before a claim is issued
in cases of exceptional urgency
Court will only grant an interim remedy before a claim has been issued if the matter is (CPR 25.2(2)(b):
- urgent; or
- it is otherwise desirable to do so in interest of justice.