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Dispute Resolution - 10 - Interim Applications - Coggle Diagram
Dispute Resolution - 10 - Interim Applications
Important Rules for all Interim Applications
Other party
MUST have at least 3 days' notice OF HEARING (5 if by phone)
unless there is a
GOOD REASON
notice is not required
This is
specifically OF THE HEARING!!
Application should be made as soon as it's clear it's desirable
If possible,
should be made at upcoming CMC/Hearing
ALL evidence
supporting the application should be
filed at Court with application fee
Case Summary
and
Draft Order
should be served
at least 2 days before hearing
for application
Example of filing timeline
'Clear days'
As deadline is defined with reference to an event, the
day of the event is not included
Thus, 'at least 3 days notice' means - 'For a hearing on Friday 20 October', the
last day on which Notice can be served
is Monday 16th October (Tues, Wed, Thurs = 3 clear days)
When is Notice Unnecessary? + Procedures
Unnecessary If
giving notice would:
Defeat the purpose
of the application
Create an
injustice
Eg for search order or freezing injunction
Procedure for without notice application
If it succeeds:
Application must be served on defendant
, alongside
notice
and
supporting evidence
Defendant gets
7 DAYS
to
apply to set aside or vary order
If it fails (without notice application made erroneously)
Court
dismisses
; AND
Makes
wasted costs order
on Solicitor (solicitor must inform client within 7 days)
Important Interim Applications
Summary Judgement
Setting aside Default Judgement
Interim Payment
Injunctions
Freezing
Search order
Summary Judgement Applications
(Part 24) + Striking Out
for defendant
Can be applied for
at any time after Acknowledgement of Service served
Both defendant
and
claimant can apply at this point
Court permission
NOT REQUIRED
unless application is being made
before
AoS served
If
the application is made right after the defendant serves an acknowledgement of service:
Defendant
need not serve a defence until the summary judgement case is ruled
Both grounds must be met to succeed - Applicant must show:
Other party has
no real prospect of success
High bar - not just 'unlikely!'
There is
no other compelling reason the case should proceed
. Reasons against this may include:
Complex facts
– court will not grant summary judgement if facts of claim are complex/technical and require a full hearing
Defendant needs
more time
to investigate the claim made
Expert/further witness
evidence is necessary to make a proper determination on the claim
Procedure
Applicant files
N244
with
evidence/witness statement
and
draft order
AT LATEST 14 DAYS BEFORE HEARING
Respondent
must serve written evidence
in
response
at least
7 days
before hearing
Applicant can serve any
further written evidence/response
at least
3 days before hearing
Potential Outcomes
Successful judgement
on claim for
claimant
- case does not proceed to trial as they met both part 24 criteria
(
STRIKING OUT
CLAIM) -
Dismissal of the claim
for
defendant
Court rules in defendant’s favour as they met both part 24 criteria -> claim is struck out
Failure of Part 24 claim -> trial proceeds as normal
Court rules Part 24 application did not meet criteria -> case proceeds as normal
Conditional Orders
Right to defend case is lost if not complied with
Eg
pay part of claim into Court
; or
Defendant must provide
proper defence within 14 days
; etc
Remember, the Defendant must only prove their chance of success is higher than imaginary - they have a 'realistic prospect of success'
However, the reason summary judgement may have been applied for is that the defence was poor, so even if the defendant defended themselves
better
at the Summary Judgement point (where they submitted separate evidence), the Court would say make a proper defence (in Particulars of Claim) within 14 days
Potential
costs orders
One party pays the other party’s costs
of the application
(
for SJ
) – eg losing party pays winner’s costs
That costs be in the case – decision on costs
deferred
to later date
No order as to costs
– when applicant justified in bringing application, but defendant
equally justifiably
defended it -> here, each party pays their own costs
Wasted costs order
– legal representatives have to pay legal costs due to their poor conduct dealing with the application
Prepare and file:
N244 - requests the Court makes an Order/Direction and what specific one the Court should make
Draft order – draft of the order the applicant wants the court to make (even in summary judgement, it’s a good idea, but not mandatory for summary judgement)
Evidence – generally a
witness statement
. This should include why the Order/Direction is being requested, and should have evidence to support the facts being relied upon
(IF claim is in High Court) – a skeleton argument
Fee paid!
Interim Payment Applications
Application for Court to order some payment
before
the Court has made its final decision (on account)
Often happens when:
Defendant admits liability
but disputes quantum amount
Court has
ruled on liability but not damages
Process
Meet
GROUNDS
for order
Invite defendant to
make
an interim payment
first
Note interim payment application
cannot be made
until time for filing AoS has expired (14 days from PoC serving)
4. Procedure - SAME AS SUMMARY JUDGEMENT
Applicant files N244 with
evidence/witness statement
and
draft order
AT LATEST 14 DAYS BEFORE HEARING
Written evidence must contain:
Amount of
money sought
Why
the amount is
sought
An
estimate
of the
final judgement
AND In Personal Injury cases
Medical reports
Schedule containing past and future losses/damages
Respondent
must serve written evidence
in
response
at least
7 days
before hearing
Applicant can serve any
further written evidence/response
at least
3 days before hearing
Grounds to be met for
interim order:
Defendant has
admitted liability
to pay at least
some
damages; or
The claimant
has obtained judgement
BUT
damages not yet assessed
; or
The court is
satisfied IF
action PROCEEDED TO TRIAL, the claimant
would obtain judgement for substantial sum
Hard to prove -
must be good evidence showing claimant would likely win
Action is against
at least 2 defendants
+ case would likely succeed at trial, EACH defendant has insurance, and court is
satisfied IF
action PROCEEDED TO TRIAL, the claimant
would obtain judgement for substantial sum against at least 1 defendant
Rules
around
awarding interim payments
Showing '
Need' isn't necessary
Not
necessary
But
need
does help the Court - useful supporting evidence
Contributory negligence is taken into account
Only a
reasonable proportion
of costs can be awarded in interim payment
No specific definition; but
Generally,
no more than 75% of the damages
Interim injunctions
2 relevant ones for SQE
Search orders + Preservation of Property
What is it?
Order that allows applicant to enter premises of respondent to search for, and take copies of, evidence for a court case
These are
usually
made without notice and to a high court judge
What is needed?
Applicant must show:
Strong prima facie case for underlying claim
; and
Defendant’s activities
must cause very serious potential
or
actual **
harm
to
claimant’s** interests
Clear
evidence that property/documents are in defendant’s possession
and may be destroyed
before an application can be made on notice
. (and where they are)
Undertaking by Claimant's Solicitor
Return original docs to defendant within 2 days
Deliver disputed property to defendant’s solicitors to be retained securely
Retain securely all property until court says otherwise
Role of independent supervising solicitor
Explains
order to defendant
Informs them of their
right to seek legal advice, vary or discharge
the order
Defendant gets
7 DAYS
to
apply to set aside or vary order
Prepares written report on execution of order
, provides it to claimant’s (applicant’s) solicitors and court
Freezing injunctions
What is it?
Order that prevents the respondent of application from disposing of their assets before trial
Eg to stop defendant from trying to protect their wealth, or to hide an item.
These are always made
without notice
and to a
High Court judge
What is needed?
Applicant must show
there is a
real risk of defendant dissipating their assets
,
that there’s a
justifiable cause of action
,;and (the order is JUST and Convenient)
and that the
defendant has assets within the jurisdiction
Strong, arguable case
Often include:
Undertaking by Claimant
to (remember freezing injunction always made without notice)
Notify defendant of right to challenge/vary order
Inform THIRD PARTIES of the freeze
and
indemnify the THIRD PARTIES of expenses suffered from complying
Third parties
with knowledge
are bound by freezing ijunctions
Grounds for Discharge of a Freezing injunction
2 most important
Defendant can
offer security for claimant's claim
(eg payment into Court)
Showing the
claimant is guilty of material non-disclosure
(didn't provide all relevant info when seeking injunction)
the 14 -> 7 -> 3 days thing DOES NOT APPLY for interim injunctions - it applies for interim APPLICATIONS
Grounds for discharging an injunction
The applicant failed to provide all relevant information. (Material non-disclosure)
There has been a material change in circumstance since the injunction was granted.
The claimant obtained the injunction and then failed to prosecute the claim with due speed.
The injunction is oppressive.
The facts do not justify injunctive relief
the claimant
has
not complied
with the
terms on which the injunction was granted
Interim Injunctions in General
Interim Injunctions in general
Orders that party
does or refrains from doing something
before /during trial
Applicant must show that the matter is urgent and that it is desirable to do so in the interests of justice
Applications can be made by the telephone and out of hours, and in some cases, an interim injunction can be obtained in 48-72 hours
.
If obtained without notice, the application is served quickly and a
hearing is fixed to take place shortly after
, as mentioned above
Usually the 3-5 days timeframe
Granted if without notice, with notice will be schedule for a hearing
Can be obtained rapidly and before proceedings begin, but if this is the case,
claimant must give undertaking to commence proceedings ASAP
Undertakings and Interim Injunctions
Court may sometimes require claimant to give undertaking in damages as condition of granting interim injunction
–
claimant agrees to compensate defendant for any losses if the court determines the injunction shouldn’t have been granted later on
Defendant can also, instead of contesting application, give an undertaking to the injunction
->
claimant
required to enter into cross-undertaking to safeguard the defendant if claimant is unsuccessful in obtaining injunction at trial