Please enable JavaScript.
Coggle requires JavaScript to display documents.
INTERIM APPLICATIONS + DEFAULT JUDGMENT - Coggle Diagram
INTERIM APPLICATIONS + DEFAULT JUDGMENT
DEFAULT JUDGMENT
Applying for
judgment in claimant's favour w/out trial if defendant has not responded to claim by acknowledgment / defence w/in time limits
Claimant must prove:
- At date on which judgment is entered, time has expired for filing acknowledgment of service
- Claim has not been admitted / satisfied by defendant.
- Defendant has NOT made application for summary judgment (merit based NOT procedure) / strike out (applies to SoC)
If claimant is
successful in judgment application > claimant has won the case.
NOT obtained for:
- claims for delivery of goods subject to agreement regulated by Consumer Credit Act 1974
- Part 8 claims
- other claims where practice direction provides that claimant may not obtain it
Procedure
Once above conditions are met:
Money claims (specified) = claimant files REQUEST for judgment on the specified form dealt with on paper > court makes judgment for amount sought (fixed costs + interest)
May include interest if:
particulars include interest / statutory interest = rate is LESS than rate of interest payable on judgment debts when claim form was issued / claimant’s request for judgment includes a calculation
of the interest claimed to that date
Money claims (unspecified) = claimant files REQUEST for judgment on the specified form dealt with on paper > court makes judgment for sum to be decided by them at heating
Non-money claims = NOT on paper > claimant must APPLY for default judgment hearing to be listed where it will give whatever judgment it considers appropriate.
Claim against more than one defendant
Claimant may obtain
default judgment against 1 of 2 or more defendants + proceed with claim against other defendants if it can be dealt with separately from claim against the other defendants
Setting aside default judgment
CAN be done
on application by defendant / court which is determined at hearing
MUST be set aside if judgment was wrongly entered as:
time limit for acknowledging service /defence has
not expired
acknowledgment of service / defence had been filed
on time
Summary judgment / strike out had
been applied for before judgment was entered
Defendant had
satisfied / admitted claim or required time to
pay
MAY be set aside if judgment was correctly entered as (court's discretion considering delay / order / Denton test):
defendant has
real prospect of successfully defending claim
there is some
other good reason
why judgment should be set aside / varied / defendant should be allowed to defend
INTERIM APPLICATIONS
Applications for
orders / directions made to court by any party in ‘interim’ period between commencement of proceedings and trial
Made in accordance with
overriding objective BUT parties should try to resolve matters w/out court
Procedure
Applicant
files application notice (Form N244) at court with: who they are / order they want / why / supporting info + court fee + evidence on SoC OR witness statement
Applicant
takes / sends court the application notice, evidence and draft order
Court issues
application + provides notice w date + time of hearing
Application
notice, evidence and draft order served on other party ASAP + not less than 3 clear days before the application is to be heard
Respondent may wish to file evidence in the
form of a witness statement ASAP + applicant can respond to this ASAP
Statement of costs filed + exchanged not less than 24 hours before the hearing
Hearing UNLESS parties have agreed terms of the order / agree there should be no hearing / court does not consider
a hearing appropriate
Without notice applications
W/OUT serving application notice on the respondent
ONLY IF:
exceptional
urgency
overriding objective is
furthered
all parties
consent
court gives
permission
court
order, rule or practice
direction permits
hearing
date for fixed + party wishes to make application at hearing + does NOT have sufficient
time to serve application notice
Procedure
Application must
explain why no notice is given
Applicant include
arguments and evidence in support of the (absent) responden
Applicant must serve
respondent ASAP after hearing w application notice + evidence + order
Court order must have
statement of respondent's right to make application to set aside / vary order
Application to set aside
must by made w/in 7 days of order being served on other party
SUMMARY JUDGEMENT
Early judgment on all or part of the claim
Either party can apply
if it considers other
party's position to claim / issues as weak + enables court to dispose of claims / issues W/OUT need for full trial
IF granted on issue = issue is
no longer considered at trial
Grounds
Claimant has
no real prospect of succeeding OR defendant has no real prospect of successfully defending
AND
NO other compelling reason why the case / issue should be disposed of at trial
Real prospect =
not possible at all
Evidence needed to
support grounds which identifies law that the applicant relies on
Who can apply
Claimant = After defendant filed acknowledgement of service / defence (earlier with court's permission)
Defendant = anytime after proceedings have commenced.
Court = fix hearing of its own initiative
Claimant / defendant should apply
before / when filing the Directions Questionnaires to avoid costs
IF claimant fails to comply
with relevant pre-action protocol > their application for summary judgment NOT considered before defence is filed / time for doing has expired
Effect of summary judgment application = pause in proceedings:
If claimant before
defendant served defence > time to file defence is extended until after hearing
If defendant >
defendant does not have to file acknowledgement / defence until after hearing
.
Format
STANDARD -
normal rules relating to interim applications apply
Special
longer time limits for service/evidence
The application notice must:
Include
statement that it is application for summary judgment under Part 24 AND
Direct
respondent’s attention to the CPR requiring them to file + serve evidence at least 7 days before hearing
Potential orders at hearing:
- Dismissal of the application = fails
- Dismissal of the claim = success
- Judgment on the claim = success
- Conditional order = respondent may succeed but improbable: refuse summary judgment + allow respondent to continue subject to conditions
Procedure
Applicant files
application notice (Form N244) at court with: who they are / order they want / why / supporting info + court fee + evidence on SoC OR witness statement
Applicant
takes / sends court the application notice, evidence and draft order
Court
issues application + provides notice w date + time of hearing
Application
notice, evidence and draft order served on other party at least 14 days before hearning
Respondent may
wish to file evidence in the form of a witness statement at least 7 days before hearing + applicant can respond to this at least 3 days before hearing
Statement of costs
filed + exchanged not less than 24 hours before the hearing
Hearing
INTERIM PAYMENTS
Advance payment of a proportion of the likely judgment sum which defendant may be liable to pay to claimant
ONLY claimant
may wish to ask for interim payment to assist it financially in interim period prior to settlement/trial
Grounds
Court will
ONLY make order if 1 of following are satisfied
:
- Defendant has admitted liability OR
- Claimant has obtained judgment OR
- Claimant would obtain substantial judgment at trial against defendant from whom he is seeking an order
Evidence
Applicant must provide evidence:
reasons that
conditions are satisfied
sum of money
for final judgment;
sum of
money sought
;
items / matters for which interim payment is sought
;
Any
relevant
matters;
In claims PI =
details of special damages + past and future loss
In claims under Fatal Accidents Act 1976 =
details of person on whose behalf claim is made + nature
Procedure
Applicant files
application notice (Form N244) at court with: who they are / order they want / why / supporting info + court fee + evidence on SoC OR witness statement
Applicant
takes / sends court the application notice, evidence and draft order
Court issues
application + provides notice w date + time of hearing
Application
notice, evidence and draft order served on other party at least 14 days before hearning
Respondent may
wish to file evidence in the form of a witness statement at least 7 days before hearing + applicant can respond to this at least 3 days before hearing
Statement of costs filed + exchanged not less than 24 hours before the hearing
Hearing
Format
STANDARD - normal rules relating to interim applications apply - special longer time limits for service/evidence
Claimant makes
request for voluntary payment to the defendant = if defendant defends > application to court ONLY after end of period for defendant to file an acknowledgment of service
Claimant can made more than 1 application
Court must
not make interim payment of more than reasonable proportion of likely amount of the final judgment, considering contributory negligence
SECURITY OF COSTS
Claimant gives security (e.g. payment or guarantee) for subsequent liability for defendant's costs in defending the action
ONLY relates to
costs of claim NOT level of damages which may be awarded.
Grounds
The defendant must satisfy:
1. Having regard to all the circumstances of the case, it is just to make an order AND
2. One or more of the prescribed conditions in the rules are satisfied
BUT even if 1 is satisfied =
court is not obliged to give security + MAIN consideration is ability of respondent to comply with order for security for costs
Other factors
Admission of liability by the defendant / delay = less likely to succeed
Non-genuine claim = more likely to succeed
Prescribed conditions
Claimant is
resident (home / place of management) out of jurisdiction
(not in E / W)
Claimant is
company + reason it will be unable to pay defendant’s costs if ordered
(company’s inability to pay costs + amount of likely costs)
Claimant has taken
steps in relation to its assets making enforcement of costs order against it difficult
(beyond enforcement reach)
Claimant
changed address since claim was commenced to evade consequences of litigation
Claimant
failed to give an address in claim form
Claimant acting as
nominal claimant + reason it will be unable to pay the defendant’s costs if ordered
Application can be made by:
By
defendant against claimant
(usual case)
By
claimant against defendant in respect of a counterclaim
By
third party against defendant in respect of an additional claim
Format
STANDARD - normal rules relating to interim applications apply
The application notice must:
- state which ground / enactment applies AND
- supported by written evidence
Amount of security determined by:
defendant’s
likely costs
security can be for
whole action or up to a point
amount can cover
costs incurred + future costs
deduction can be
made for likely reduction upon assessment of costs / possibility of settling
Manner of security:
- payment into court
- payment to the defendant’s solicitor
- bank guarantee
- undertaking to pay costs
Procedure
Applicant files
application notice (Form N244) at court with: who they are / order they want / why / supporting info + court fee + evidence on SoC OR witness statement
Applicant
takes / sends court the application notice, evidence and draft order
Court issues
application + provides notice w date + time of hearing
Application
notice, evidence and draft order served on other party ASAP + not less than 3 clear days before the application is to be heard
Respondent may
wish to file evidence in the form of a witness statement ASAP + applicant can respond to this ASAP
Statement of costs filed + exchanged not less than 24 hours before the hearing
Hearing
INTERIM INJUNCTIONS
Order preventing respondent from doing an act / requiring them to do an act requested by claimant
Temporary measure at
start of proceedings before trial / final decision to restrain respondent from causing irreparable damage to applicant by continuing / ceasing conduct that has led to dispute
Grounds
Step 1: is there a serious question to be tried?
Injunction is
NOT cause of action = is remedy so applicant must have pre-existing cause of action
Step 2: would damages be adequate remedy for party injured by court’s grant / failure to grant injunction?
Applicant's
perspective = court
will refuse injunction if applicant could be adequately compensated by damages for loss caused by refusal to grant interim injunction
Respondent's
perspective = could
respondent be compensated by applicant if injunction was wrongly granted > If so, injunction should be granted.
Step 3: balance of convenience
If damages would
NOT be adequate > court considers if granting / not injunction carries lesser risk of injustice
Equitable principles must be considered:
injunction
not obtained if no practical purpose
Refused if applicant has not come with 'clean hands'
Excessive
delay may lead to refusal
Discretionary so no automatic right
Types of interim injunction
Prohibitory injunction = respondent has to refrain from act
Mandatory injunction = respondent has to do a specific act
Quia timet injunctions = both prohibitory and mandatory injunctions where wrong has been threatened but not yet committed
Format
STANDARD - normal rules relating to interim applications apply
Undertakings
Court often decide to
grant it only if applicant offers cross-undertaking to pay damages to respondent for any loss due to injunction if it should not have been granted
Without notice safeguards
Application can be made
without notice if it is justified + injunction will be granted for a limited period only + court will fix second hearing 'return date'
In cases of urgency +
otherwise desirable to do so in the interests of justice = party can apply before a claim form has even been issued.
Procedure
Applicant files
application notice (Form N244) at court with: who they are / order they want / why / supporting info + court fee + evidence on SoC OR witness statement
Applicant
takes / sends court the application notice, evidence and draft order
Court
issues application + provides notice w date + time of hearing
Application
notice, evidence and draft order served on other party ASAP + not less than 3 clear days before the application is to be heard
Respondent
may wish to file evidence in the form of a witness statement ASAP + applicant can respond to this ASAP
Statement of costs filed + exchanged not less than 24 hours before the hearing
Hearing