Interim Applications Flashcards
1
Q
List some examples of interim applications.
A
Examples of interim applications include extending the time period for taking a particular step in the proceedings, applying to amend a statement of case, requiring the other party to provide further information, requesting specific disclosure of a document, and seeking permission to rely on expert evidence.
2
Q
Define what an interim application is in the context of legal proceedings.
A
An interim application is a request made to the court for orders or directions during the interim period between the start of legal proceedings and the trial.
3
Q
Describe how interim applications are typically handled in court.
A
Most interim applications are dealt with at a hearing, which may be conducted remotely or partially remotely if expected to last 2 hours or less.
4
Q
How should supporting evidence be handled in the application process?
A
Supporting evidence must be filed at court and served on the respondent as soon as possible.
5
Q
Define ‘on notice’ procedure in the context of interim applications.
A
The ‘on notice’ procedure in interim applications means that the respondent is notified of the application before the hearing, allowing them to respond and participate.
6
Q
What role does court permission play in ‘without notice’ applications?
A
Court permission is one of the conditions that must be met for a ‘without notice’ application to be permitted, ensuring judicial oversight.
7
Q
Describe the requirements for making an application without notice.
A
The application must explain why no notice is given, draw attention to arguments and evidence supporting the absent respondent’s position, serve the respondent as soon as possible after the hearing, and include specific documents such as the application notice, evidence in support, and the order.
8
Q
Explain the significance of seeking permission to rely on expert evidence as an interim application.
A
Seeking permission to rely on expert evidence as an interim application is significant because it allows a party to present specialized knowledge that may be crucial for the court’s understanding of complex issues in the case.
9
Q
How does requesting specific disclosure of a document function as an interim application?
A
Requesting specific disclosure of a document functions as an interim application by compelling the other party to produce evidence that may be essential for the case, thereby aiding in the preparation for trial.
10
Q
What is the obligation of parties regarding interim applications?
A
Parties are under a specific obligation to ‘bunch’ their interim applications.
11
Q
How can evidence be presented in a court application according to CPR guidelines?
A
Evidence can be presented in one of three ways: in the application notice itself, by referring to existing statements of case, or in a witness statement (or affidavit).
12
Q
Define the role of a draft order in a court application process.
A
A draft order outlines the terms the applicant is seeking and must be filed at court along with the application notice and evidence.
13
Q
What must be completed in the application notice when providing evidence directly within it?
A
The statement of truth must also be completed when evidence is provided in the application notice.
14
Q
Define the time frame for serving the application notice after it is filed.
A
The application notice and supporting documentation must be served as soon as practicable after the application is filed and not less than three clear days before the hearing.
15
Q
Define the requirement for filing a statement of costs in relation to the application.
A
A statement of costs should be filed and exchanged not less than 24 hours before the hearing.
16
Q
Define the conditions under which a hearing may not be necessary for interim applications.
A
A hearing may not be necessary if the parties have agreed on the terms of the order, if they agree there should be no hearing, or if the court does not consider a hearing appropriate.
17
Q
What is a ‘consent order’ in the context of interim applications?
A
A consent order is an order in the agreed form, signed on behalf of each party, submitted when the parties have agreed on the terms of the order.
18
Q
What is the purpose of the application notice (form N244)?
A
The application notice (form N244) serves as the formal document to initiate the application process in court.
19
Q
Define the role of the draft order in the application process.
A
The draft order outlines the specific requests or orders that the applicant is seeking from the court.
20
Q
Describe the normal procedure for interim applications.
A
The normal procedure for interim applications is an ‘on notice’ or ‘with notice’ procedure, where the respondent is served with the application before the hearing, allowing them to file evidence in response and attend the hearing.
21
Q
What is an alternative procedure to the normal interim application process?
A
An alternative procedure is to make an application ‘without notice’, which means the application notice is not served on the respondent.
22
Q
List the conditions under which a ‘without notice’ application is permitted.
A
A ‘without notice’ application is permitted if:
- there is exceptional urgency;
- the overriding objective is best furthered;
- all parties consent;
- the court gives permission;
- a court order, rule, or practice direction permits; or
- a hearing date is fixed and there is insufficient time to serve an application notice.
23
Q
How should a party proceed if they make a ‘without notice’ application?
A
If a party makes a ‘without notice’ application, they should inform the other party and the court (if possible in writing) as soon as they can about the nature of the application and the reason for it.
24
Q
How should the applicant serve the respondent after a without notice hearing?
A
The applicant must serve the respondent as soon as possible after the hearing, regardless of whether the court has granted the relief sought.
25
Define the documents that must be served on the respondent in a without notice application.
The documents include the application notice, the evidence in support, and the court order.
26
Explain the time frame for a respondent to apply to set aside an order made without notice.
Any application to set aside must be made within 7 days of the order being served on the other party.
27
List the types of evidence that must be included in an interim payment application.
The types of evidence include reasons for conditions being satisfied, the likely final judgment sum, the interim payment sum sought, items related to the interim payment, any other relevant matters, and specific details for personal injury or Fatal Accidents Act claims.
28
How does CPR 25.9 affect the disclosure of interim payments in court?
CPR 25.9 states that interim payments will not be disclosed to the trial judge until all questions of liability and quantum have been resolved, unless the defendant consents to the disclosure.
29
Define interim payment in the context of legal proceedings.
An interim payment is a payment made by a defendant during the course of legal proceedings, which can be made voluntarily or by court order.
30
What is the minimum notice period for service before the hearing?
Service must be completed at least 14 days before the hearing.
31
Define the timeline for the applicant to file evidence in reply.
The applicant must file evidence in reply at court and serve it on the respondent as soon as possible, at least 3 days before the hearing.
32
What is the significance of CPR 25.6(1) in the context of interim payments?
CPR 25.6(1) states that a claimant cannot apply to the court for an interim payment before the defendant has filed an acknowledgment of service.
33
What must the court consider when making an interim payment?
The court must ensure that the interim payment is not more than a reasonable proportion of the likely amount of the final judgment, considering factors like contributory negligence, set-off, or counterclaim.
34
Define the time frame in which a claimant can apply to the court for an interim payment.
A claimant cannot apply to the court for an interim payment before the end of the period for the defendant filing an acknowledgment of service.
35
Describe the initial step a claimant must take when seeking an interim payment.
A claimant must first make a request for a voluntary payment from the defendant.
36
What type of claims might involve requesting an interim payment?
Interim payments are often requested in personal injury claims to provide financial assistance before the final settlement or trial.
37
What details are necessary in personal injury claims for interim payments?
In personal injury claims, it is necessary to provide details of special damages and past and future loss.
38
Define the conditions that must be satisfied for making an interim payment.
The conditions include providing evidence that supports the claim for an interim payment, detailing the expected final judgment amount, and specifying the interim payment amount sought.
39
How should documents be presented in support of an interim payment application?
Documents in support of the application should be exhibited, including a medical report in personal injury claims.
40
Discuss the implications of having multiple defendants in a claim regarding interim payments.
In cases with multiple defendants, the court can still grant an interim payment if it is satisfied that the claimant would obtain a substantial judgment against at least one of the defendants..
41
What must be demonstrated for a claimant to receive an interim payment if the case goes to trial?
The claimant must demonstrate that they would likely obtain judgment for a substantial amount of money against the defendant if the case were to go to trial.
42
Explain the significance of obtaining a judgment against a defendant in relation to interim payments.
Obtaining a judgment against a defendant for damages to be assessed allows the claimant to seek an interim payment, as it indicates that the court has recognized the claimant's right to compensation.
43
How does a defendant's admission of liability affect the court's decision on interim payments?
If the defendant admits liability to pay damages, the court is more likely to grant an order for an interim payment to the claimant.
44
Describe the conditions under which a court will make an order for an interim payment.
A court will make an order for an interim payment if:
1) The defendant has admitted liability to pay damages to the claimant.
2) The claimant has obtained judgment against the defendant for damages to be assessed.
3) It is satisfied that the claimant would obtain judgment for a substantial amount of money against the defendant if the claim went to trial.
45
Explain the purpose of security for costs in legal proceedings.
The purpose of security for costs is to ensure that a defendant is protected against the risk that a claimant will not be willing or able to pay the defendant's costs if the claim is successfully defended.
46
Identify who can make an application for security for costs.
An application can be made by a defendant against a claimant, by a claimant against a defendant in respect of a counterclaim, or by a third party against a defendant in respect of an additional claim.
47
How does the court typically require security for costs to be provided?
The court most commonly 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 favor.
48
How does the court consider the overriding objective in security for costs applications?
The court considers whether making a security for costs order would deal with the case justly and at a proportionate cost.
49
Describe a situation where a claimant may be required to provide security for costs according to CPR 25.13(2)(d).
A claimant may be required to provide security for costs if they have changed their address since the claim was commenced with the intention of evading the consequences of the litigation.
50
What is a common requirement imposed by the court when ordering security for costs?
A common requirement is that the claimant must make a payment into court.
51
Define the condition under CPR 25.13(2)(e) regarding claimants and their addresses.
Under CPR 25.13(2)(e), a claimant may be required to provide security for costs if they failed to give an address in the claim form.
52
What is the implication of a claimant being resident out of the jurisdiction according to CPR 25.13(2)(a)?
If a claimant is resident out of the jurisdiction and not in a State bound by the 2005 Hague Convention, they may be required to provide security for costs.
53
Explain the condition under CPR 25.13(2)(c) regarding companies and their ability to pay costs.
CPR 25.13(2)(c) indicates that if the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so, security for costs may be necessary.
54
What is the role of a third party in the context of security for costs?
A third party can make an application against a defendant in respect of an additional claim.
55
What actions by a claimant could lead to difficulties in enforcing a costs order as per CPR 25.13(2)(g)?
If a claimant has taken steps regarding its assets that would make enforcement of a costs order against it difficult, they may be required to provide security for costs under CPR 25.13(2)(g).
56
List some states that are bound by the 2005 Hague Convention.
The states include the UK, all EU member states, Mexico, Singapore, and Montenegro.
57
Describe the condition for a claimant company to provide security for costs.
The claimant must be an impecunious company, meaning it is unable to pay the defendant’s costs if ordered to do so.
58
What is the burden of proof for showing the defendant is unable to pay?
The defendant does not have to show on a balance of probabilities that the claimant company is unable to pay – the defendant may be able to show that there is ‘reason to believe’ that the claimant company will be unable to pay even if the claimant company can adduce substantial evidence to the contrary
59
What must the defendant show for security of costs against a company?
The defendant must show the company ‘will be unable’ (as opposed to ‘may be unable’) to pay its debts when the order is made against it.
60
What must the defendant demonstrate regarding the claimant company's financial status?
The defendant must show the company's inability to pay costs and the amount of the likely costs.
61
What are some examples of actions that could violate the 'claimant moving assets' condition?
Examples include the dissipation of assets, transferring assets overseas, transferring them into the names of third parties, or moving them to unknown locations.
62
What is the main consideration for the court when deciding on security for costs?
The main consideration is the ability of the respondent to comply with any order for security for costs.
63
What challenge does the court face when balancing the interests of claimants and defendants regarding security for costs?
The court must balance the potential injustice to the claimant, who may be prevented from pursuing their claim if unable to pay security and therefore breaching their right to a fair trial, against the injustice to the defendant, who risks incurring costs without security.
64
Describe the factors the court considers apart from the ability to comply with the order.
The court considers factors such as admission of liability by the defendant, substantial open offers, delay in making the application, the genuineness of the claim, and whether the defendant caused the claimant's financial difficulties.
65
Explain what is meant by 'out of the jurisdiction'.
'Out of the jurisdiction' means not in England and Wales.
66
What impact does delay have on the success of a defendant's application?
Delay makes the application less likely to succeed; it should be made promptly once the relevant facts are known.
67
How must the application for security for costs be supported?
The application must be supported by written evidence, typically provided through a witness statement.
68
Define the purpose of the witness statement in the context of security for costs applications.
The witness statement should cover the grounds for the application, factors in the court's discretion, likely costs to trial, and the amount of security requested.
69
What case established the principle regarding the defendant's burden of proof in relation to the claimant company's financial status?
The principle was established in the case of Jirehouse Capital v Beller
70
What is the significance of the amount of security requested in the application?
The amount of security requested is a key component that must be included in the application for security for costs.
71
Describe the court's role in determining security for costs.
The court has the discretion to determine the amount of security for costs, the manner in which it is given, and the time frame for providing it, as outlined in CPR 25.12(3).
72
Define the factors that influence the amount of security for costs.
Factors include the amount of the defendant's likely costs, whether the security covers past and future costs, potential deductions for cost assessments, and considerations of delays that may affect the security for incurred versus future costs.
73
How can a claimant's actions regarding their assets affect a defendant's ability to enforce a costs order?
If a claimant dissipates assets, transfers them overseas, or places them in the names of third parties, it can make it difficult for a defendant to enforce a costs order.
74
What can the security for costs cover?
The security can cover the whole action or a specific period, including costs incurred (pre-action) and future costs.
75
Describe the different manners in which security can be given.
Security can be given through a payment into court, a payment to the defendant’s solicitor, a bank guarantee, or an undertaking to pay costs.
76
How can a bank guarantee serve as a form of security?
A bank guarantee serves as a form of security by providing a financial assurance from a bank that it will cover a specified amount if the party fails to meet their obligations.
77
Explain the role of an undertaking to pay costs as a form of security.
An undertaking to pay costs is a commitment made by a party to cover the legal costs incurred by another party, serving as a form of security in legal proceedings.
78
What are the implications of a payment into court as a security measure?
A payment into court as a security measure implies that the funds are held by the court and can be used to satisfy any potential claims or costs that arise during the legal process.
79
Define an injunction in legal terms.
An injunction is an order of the court requiring a party to do or to refrain from doing a given act.
80
Describe the requirements for an applicant to obtain an injunction.
An applicant must have a pre-existing cause of action and must demonstrate that there is a serious question to be tried.
81
How does an interim injunction function in legal proceedings?
An interim injunction functions as a temporary court order that prevents a party from continuing or ceasing conduct that has led to a dispute, ensuring that no irreparable harm occurs before the trial.
82
Describe the initial consideration the court makes regarding damages in an injunction case.
The court first considers the issue from the applicant’s perspective, determining if the applicant could be adequately compensated by damages for any loss caused by the refusal to grant an interim injunction.
83
What are the consequences of breaching an injunction?
Breach of an injunction is potentially punishable as contempt of court, which can result in a fine and/or imprisonment.
84
Explain the difference between an interim injunction and a perpetual injunction.
An interim injunction is a temporary order that lasts until trial or further order, while a perpetual injunction is a final order made at trial that continues indefinitely without limitation of time.
85
Describe a prohibitory injunction.
A prohibitory injunction requires the respondent to refrain from doing a specific act, such as preventing an employee from breaching a confidentiality clause in an employment contract.
86
Provide an example of a mandatory injunction.
A mandatory injunction requires the respondent to perform a specific act, such as requiring a supplier to deliver software that was not provided at the end of a contractual relationship.
87
Explain the concept of quia timet injunctions.
Quia timet injunctions allow for both prohibitory and mandatory injunctions when a wrong is threatened but not yet committed, such as requiring a bank to keep an account open to prevent a breach of statutory duty.
88
How does a court determine if an injunction should be granted?
The court must be satisfied that the application is not frivolous or vexatious and that there is a serious question to be tried.
89
Explain the significance of the phrase 'serious question to be tried' in the context of injunctions.
It indicates that the court must find a legitimate legal issue that warrants further examination before granting an injunction.
90
What is the implication of an applicant suing for an injunction without a cause of action?
An applicant cannot sue for an injunction alone; they must have a pre-existing cause of action to support their request.
91
How does the court assess the adequacy of damages from the applicant's perspective?
The court generally refuses an injunction if the applicant can be adequately compensated by damages, unless the damages are inadequate due to the respondent's inability to pay, irreparable harm, unquantifiable harm, or serious and ongoing harm.
92
What factors might lead the court to find damages inadequate for the applicant?
Damages may be deemed inadequate if the respondent cannot pay them, if the harm is irreparable, cannot be quantified, or is serious and likely to continue.
93
What is the potential consequence for the respondent if an injunction is granted and later found to be unjustified?
If the injunction is found to be unjustified, the respondent may be prevented from acting until trial, and the court will evaluate if they can be compensated by the applicant for any losses incurred.
94
What might happen if the applicant fails at trial after an injunction has been granted?
If the applicant fails at trial, it may indicate that the injunction should not have been granted, leading the court to reassess the adequacy of damages for the respondent.
95
How does the court determine the adequacy of damages for the parties involved in an injunction case?
The court evaluates whether damages would be sufficient for either party. If neither party would find damages adequate, the court moves on to consider the balance of convenience.
96
Define 'balance of convenience' in the context of injunctions.
The 'balance of convenience' refers to the assessment made by the court to determine which party would suffer less harm or injustice if the injunction is granted or denied.
97
Explain the significance of Step 3 in the injunction process.
Step 3 is significant because it helps the court decide whether to grant or deny an injunction based on the potential for injustice and the adequacy of damages.
98
How should evidence be presented if an application for an injunction is made without notice?
If the application is made without notice, the evidence must state the reason why notice has not been given, as per CPR 25.3.
99
What is a cross undertaking in damages in the context of interim injunctions?
A cross undertaking in damages is a safeguard that may be required when applying for an interim injunction.
100
Describe the purpose of a cross-undertaking in the context of an interim injunction.
A cross-undertaking serves to protect the respondent by ensuring that the applicant will pay damages for any loss incurred if the interim injunction is later found to have been improperly granted.
101
What conditions might lead to the discharge of an interim injunction?
An interim injunction may be discharged if the proceedings are discontinued, if the injunction is lifted before trial, or if it is determined at trial that the applicant was not entitled to the injunction.
102
What happens if an interim injunction is found to have been improperly granted?
If an interim injunction is found to have been improperly granted, the applicant may be required to compensate the respondent for any losses incurred as a result of the injunction.
103
Describe the process of applying for an interim injunction without notice.
An application for an interim injunction can be made without notice if justified. If granted, it is initially for a limited period, and a second hearing, called the 'return date', is scheduled where the respondent can attend and make representations.
104
What happens at the return date hearing for an interim injunction?
At the return date hearing, the court can maintain the injunction, discharge it, vary its terms, enforce the applicant’s undertaking in damages, or accept an undertaking from the respondent not to perform the acts in question.
105
Define the term 'return date' in the context of an interim injunction.
The 'return date' is the second hearing scheduled by the court after an interim injunction is granted without notice, where the respondent is given the opportunity to make representations.
106
Describe the requirement for an applicant in a without notice application.
The applicant must make full and frank disclosure of all matters of fact or law relevant to the application, including those that may be adverse to the applicant.
107
How important is full disclosure in interim applications made without notice?
Full disclosure is particularly important when something as significant as an interim injunction is at stake.
108
How does the concept of 'without notice safeguards' relate to legal applications?
Without notice safeguards are measures in place to ensure fairness and transparency in legal proceedings, even when one party is not present.
109
Describe the conditions under which a party can apply for an interim injunction without notice.
A party can apply for an interim injunction without notice if the matter is urgent or if it is otherwise desirable to do so in the interests of justice.
110
How does the court determine whether to grant an interim remedy before a claim has been issued?
The court will grant an interim remedy before a claim has been issued if the matter is urgent or if it is otherwise desirable in the interests of justice.
111
What must an applicant undertake to the court when applying for an interim remedy before issuing a claim form?
The applicant must undertake to the court to issue a claim form immediately.
112
What does it mean when a defendant has a right to trial by jury in the context of summary judgment?
It means that if the case involves issues such as fraud, the defendant may be entitled to have the matter decided by a jury, which can be a compelling reason to proceed to trial rather than summary judgment.
113
What does a dismissal of the claim indicate about the defendant's application for summary judgment?
It indicates that the defendant has successfully won the case, leading to the claim being dismissed.
114
Define a conditional order in the context of summary judgment.
A conditional order means the judge believes the respondent may succeed but it is improbable; the court refuses summary judgment and allows the respondent to continue under certain conditions.
115
Explain the result if the application for summary judgment fails.
The issues must continue to trial, and the court will provide directions to take the claim forward.
116
What happens if the defendant applies for summary judgment and succeeds?
The claim is dismissed, and the defendant has 'won'.
117
Describe the requirements for an application notice for summary judgment under Part 24.
The application notice must include a statement that it is 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 seven days before the summary judgment hearing.
118
What is a draft order in the context of a summary judgment application?
A draft order is a proposed order that outlines the relief sought by the applicant in the summary judgment application.
119
Explain the importance of supporting evidence in the application for summary judgment.
Supporting evidence is crucial as it substantiates the claims made in the application and helps the court make an informed decision.
120
Define the service requirements for the hearing notice in the summary judgment process.
The hearing notice must be served at least 14 days before the hearing.
121
What is the timeline for the applicant to file evidence in reply during the summary judgment process?
The applicant must file their evidence in reply at court and serve it on the respondent as soon as possible, at least 3 days before the hearing.
122
How should the respondent handle evidence submission in the summary judgment process?
The respondent must file their evidence at court and serve it on the applicant as soon as possible, at least 7 days before the hearing.
123
Describe the initial steps to make an application for summary judgment.
The initial steps include completing the application notice (form N244), gathering supporting evidence, drafting an order, and paying the required fee.
124
What happens if the application for summary judgment is made when filing Directions Questionnaires?
The court will delay allocating the matter to a track until after the summary judgment hearing.
125
What is the ideal timing for a claimant or defendant to apply for summary judgment?
Ideally, they should apply either before or at the same time as filing the Directions Questionnaires to avoid unnecessary costs.
126
When can a defendant apply for summary judgment?
A defendant can apply for summary judgment anytime after proceedings have commenced.
127
When can a claimant apply for summary judgment?
A claimant can apply for summary judgment after the defendant has filed an acknowledgement of service or defence, or earlier with the court's permission.
128
Describe the effect of granting summary judgment on an issue.
If summary judgment is granted on an issue, that issue is no longer considered at trial.
129
Explain the significance of scrutiny of key documents in the context of summary judgment.
Scrutiny of key documents is significant because it may reveal critical information that could impact the outcome of the case, thus affecting whether a trial is necessary.
130
What is an example of a compelling reason for delaying a trial?
An example of a compelling reason for delaying a trial is if multi-party litigation is involved, which may require additional time for coordination and preparation.
131
What must be established for a court to dispose of a claim without a trial?
It must be established that there is no compelling reason for the case to go to trial and that either the claimant or the defendant has no real prospect of success.
132
How can a respondent defeat an application for summary judgment?
To defeat the application, the respondent does not need to show that their case will probably succeed; they only need to demonstrate that there is some chance of success, even if it is improbable.
133
Define 'no real prospect' in the context of legal claims.
'No real prospect' means that the position is fanciful, imaginary, or false, indicating that the claim or defense lacks a genuine chance of success.
134
Explain the role of compelling reasons in the context of summary judgment.
Compelling reasons refer to any significant factors that might necessitate a trial despite the absence of prospects for success on either side, influencing the court's decision to proceed with a trial.
135
What is the significance of CPR 24.2 in relation to summary judgment?
CPR 24.2 outlines the grounds for summary judgment, specifying the conditions under which a court can decide a claim or issue without a trial.
136
How does the court determine if summary judgment is appropriate?
The court assesses whether the claimant or defendant has no real prospect of success on the claim or issue and considers if there are compelling reasons to proceed to trial.
137
Define summary judgment in the context of legal proceedings.
Summary judgment is a legal decision made by a court to dispose of a claim or issue without a full trial, based on the determination that there are no genuine disputes of material fact.
138
What does CPR stand for in the context of court procedures?
CPR stands for Civil Procedure Rules, which govern the conduct of civil litigation in the courts.
139
Identify the grounds for a court to strike out a statement of case.
The court can strike out a statement of case if it discloses no reasonable grounds for a claim or defense, is an abuse of process, or is likely to obstruct the just disposal of proceedings.
140
Explain the circumstances under which judgment in default is granted.
Judgment in default is granted when a defendant fails to respond to a claim by not filing an acknowledgment of service or a defense within the CPR time limits.
141
Who can apply for summary judgment and under what circumstances?
Either party can apply for summary judgment if it considers that the other party's position in relation to the claim or particular issues is sufficiently weak.
142
How does summary judgment contribute to cost savings in legal proceedings?
Summary judgment saves costs by allowing the court to dispose of weak cases or issues without the need for a full trial.
