Topic 10- Interim Applications, Judgments and Striking Out

Question 1

What is an application notice?

Answer 1

This is a document in which the applicant states their intention to seek a court order

Question 2

Where must an application for an order be made?

Answer 2

At the court where the claim started

Question 3

What must an application notice include?

Answer 3

It must state-
- What order the applicant is seeking
- Why the applicant is seeking the order
- Any supporting written evidence

Question 4

When must an application notice be served?

Answer 4

As soon as practicable after it is filed, and at least 3 days before the court is to deal with the application

Question 5

When may the court deal with an application for an order without a hearing?

Answer 5

If the parties agree the terms of the order sought

If the parties agree to dispense with a hearing

If the court does not consider a hearing is appropriate

Question 6

If parties agree to dispense with an order application hearing, can they apply to have it set aside?

Answer 6

They must first get the court’s permission to apply to have the order set aside, varies or stayed

Question 7

If a party was not served an application notice of a court order, what may they do?

Answer 7

They can apply to have the order set aside or varied

This application must be made within 7 days of the order being served

Question 8

If any party fails to attend the hearing of an application for a court order, can the court proceed?

Answer 8

Yes, the court may proceed in their absence

Question 9

If a court dismisses an application that they believe was completely without merit, what must they do?

Answer 9

The court must record that fact, and consider whether it is appropriate to make a civil restraint order

Question 10

Can an application for an order be made without serving notice?

Answer 10

Yes, but only in certain circumstances

Question 11

What are the circumstances where a party may make an application without serving notice?

Answer 11

If there is extreme urgency

Where the overriding objective is best furthered by doing so

Consent of all parties

With the permission of the court

Question 12

When may an informal notice of application be made?

Answer 12

Where there is not enough time to do so, then an informal notice can be made

Question 13

When can an order for an interim remedy be made?

Answer 13

It can be made at any time, including before proceedings, and after judgment

Question 14

When may a court grant an interim remedy before proceedings?

Answer 14

If the matter is urgent
OR
If it is in the interests of justice

Also, the defendant cannot apply until they have filed their acknowledgment of service or defence

Question 15

When may the court grant an interim remedy without notice?

Answer 15

If there are good reasons for not giving notice, eg, extreme urgency

Question 16

Does an application for interim remedy need to be supported by evidence?

Answer 16

Yes, it must be supported by evidence

Question 17

When may a hearing for an interim application be heard in private?

Answer 17

Where publicity would defeat the object of the hearing

It would be unjust to the respondent for there to be a hearing

If the hearing involves confidential information

Question 18

What is the disclosure obligations when making an application without notice?

Answer 18

The applicant must make full and frank disclosure of all matters relevant to the application

Question 19

If there was not full and frank disclosure in an interim injunction hearing, what may the court do?

Answer 19

They may discharge the injunction

Question 20

What is the golden rule in applications without notice?

Answer 20

The applicant must identify any material facts, and give full and frank disclosure

Question 21

What will the court take into account where there has been a breach of the disclosure obligations in an interim application?

Answer 21

The gravity of the breach

The excuse or explanation offered

The severity and duration of the prejudice to the respondent

Question 22

If the court has discharged an injunction due to non-disclosure, can the court re-grant a fresh injunction?

Answer 22

Yes, but they must look at the harm to the applicant if no injunction is granted, and the breach of the applicant

Question 23

What is a default judgment?

Answer 23

This is a judgment without trial where a defendant has failed to file an acknowledgement of service or a defence

Question 24

When may a claimant not obtain a default judgment?

Answer 24

Where their claim is for delivery of goods (subject to Consumer Credit Act, 1974)
OR
Where they use a Part 8 procedure

Question 25

What conditions must be satisfied for a claimant to obtain default judgment?

Answer 25

The defendant has not filed an acknowledgment of service or defence The relevant time for doing so has expired

Question 26

Can a claimant obtain default judgment if they have already applied for summary judgment?

Answer 26

No

Question 27

How does a claimant obtain default judgment?

Answer 27

They must file a request in a practice form for what they need Give the def's date of birth

Question 28

Can a claimant claim interest on a default judgment?

Answer 28

Yes, they may include the amount of interest in the request

Question 29

If there are two defendants, and the claimant obtains default judgment against one, what happens to the other defendant?

Answer 29

If the claim can be dealt with separately, the claimant may continue with the proceedings against the other defendant If they cannot be dealt with separately, the court will not enter default judgment

Question 30

Can a claimant obtain default judgment for specific performance?

Answer 30

No, they can only obtain default judgment for sum of money, or delivery of goods

Question 31

When MUST the court set aside default judgment?

Answer 31

If the judgment was wrongly entered, because an AoS or defence has actually been entered

Question 32

When MAY the court set aside or vary default judgment?

Answer 32

If the defendant has a real prospect of successful defence OR There is some other good reason why the judgment should be set aside or varied Judge has discretion here Need to also look at the promptness of the defendant in setting aside the judgment

Question 33

What may the "some other good reason" be for when the default judgment may be set aside by the court?

Answer 33

Where there may be serious allegations against the claimant, such as aggressive solicitors

Question 34

Why will the promptness of the defendant be a factor in applying to set aside the judgment?

Answer 34

The failure to make an application promptly may justify the court in refusing relief

Question 35

Can a non-party apply to set aside a default judgment?

Answer 35

Yes, a non-party can apply to join the defendant as a second defendant to set aside a judgment

Question 36

What types of proceedings may a summary judgment be given?

Answer 36

Can be given in any type of proceedings against a claimant Can be given in any type of proceedings against a defendant except proceedings for possession of premises

Question 37

Can a default judgment be made against a claimant?

Answer 37

No, only against defendants

Question 38

Can a summary judgment be made against a claimant?

Answer 38

Yes, it can be made against claimants and defendants

Question 39

What are the grounds for giving summary judgment?

Answer 39

Where a party considers the other party has no real prospect of succeeding in their claim/defence AND There is no other compelling why the case should be disposed of at trial

Question 40

What is meant by "no real prospect of succeeding" when giving a summary judgment?

Answer 40

Where it carries no degree of conviction, and is fanciful without any substance

Question 41

Where does the burden of proof lie on proving there is no real prospect of success for a summary judgment?

Answer 41

It lies on the applicant to establish this

Question 42

When making a summary judgment, can the court consider if new evidence may become available to give the claim a reason prospect of success?

Answer 42

They will likely consider whether disclosure may add new evidence to whether the claim has a real prospect of success

Question 43

When may a claimant be prevented from obtaining summary judgment?

Answer 43

If the defendant can show he intends to raise a set-off defence or counterclaim, and has a prospect of succeeding in this

Question 44

When can a claimant apply for summary judgment?

Answer 44

As soon as the defendant has filed an acknowledgment of service or a defence UNLESS Court gives permission

Question 45

In which circumstances can a claimant apply for summary judgment after the claim form has been served (if D has not filed an AoS or defence)

Answer 45

Where the claim is for specific performance or rescission of an agreement

Question 46

If a claimant has applied for a summary judgment after Def has filed their AoS, does the Def need to file a defence?

Answer 46

No, there is no obligation to file their defence

Question 47

How many days notice must a respondent be given when a summary judgment hearing is fixed?

Answer 47

At least 14 days notice before the hearing date

Question 48

What must an application notice for summary judgment include?

Answer 48

Identify any points of law or document relied upon Any written evidence State the grounds for summary judgment

Question 49

If a party wishes to rely on written evidence at a summary judgment hearing, when must they serve the evidence on the other parties?

Answer 49

7 days before the hearing for the respondent's evidence 3 days before the hearing for the applicant's evidence

Question 50

What orders may the court make after hearing the application for summary judgment?

Answer 50

Judgment of the claim Striking out or dismissal of the claim Dismissal of the application Conditional order/costs order

Question 51

When will the court strike out a claim upon summary judgment?

Answer 51

Where the claimant's claim is unwinnable

Question 52

What conditional orders may the court grant upon summary judgment?

Answer 52

For a party to pay a sum of money into the court

Question 53

When may the court strike out a statement of case?

Answer 53

If there are no reasonable grounds for bringing or defending the claim OR There is an abuse of process OR There has been a failure to comply with a court order or rule

Question 54

When a court has struck out a claim's statement of case and ordered to pay costs to the defendant, but then the claimant starts another claim against the same defendant, what must the court do?

Answer 54

They court may, on application by the defendant, stay the other claim until the costs of the first claim have been paid

Question 55

Where the claimant serves the claim form then serves the particulars of claim 7 days later, what must the defendant do to prevent a default judgment?

Answer 55

Within 14 days of service of the particulars of claim, file an acknowledgment of service

Question 56

In deciding whether to set aside a default judgment, what is the most significant factor the court must consider when deciding whether to grant the application?

Answer 56

The promptness of the defendant in bringing the application, and any delay by them

Question 57

If a claimant wishes to obtain default judgment against one defendant in a claim, what will the court consider if there is another defendant in the claim?

Answer 57

If the claim against the other defendant can be dealt with separately from the claim If not, they will not enter default judgment

Question 58

If a claimant has had their claim dismissed, but then they bring another claim on exactly the same facts, what should the defendant do?

Answer 58

Don't file an acknowledgment or service or defence Instead, file an application to strike out the claimant's claim on the basis of abuse of process

Question 59

Is bringing a claim after the time limit has expired consider an abuse of process?

Answer 59

Yes, this is an abuse of process, and the court can therefore strike out the claim

Question 60

Can the court deal with an interim application without a hearing?

Answer 60

Yes, if they do not consider a hearing would be appropriate

Question 61

Can a claimant apply for a summary judgment at any time?

Answer 61

No, the claimant must wait until the defendant has filed an acknowledgment of service or defence

Question 62

When is the best time to make an application to strike out a claim?

Answer 62

As soon as it becomes apparent that it is necessary and desirable to make an application

Question 63

How does a party obtain judgment to strike out a claim?

Answer 63

They must file a request for judgment, and state that their right to enter judgment has arisen due to non-compliance with an order

Question 64

If a default judgment by request is obtained against a child, who was not known to be a child, what must the court do?

Answer 64

The default judgment will be set aside, as they were a child and the default judgment was obtained by request

Question 65

When will a conditional order be made?

Answer 65

Where it is possible the defendant may have a defence, but the other parts of the claim will likely not succeed The court can then order for a sum of money to paid into the court

Question 66

When will the court strike out a claim in summary judgment?

Answer 66

Where the claimant's claim is unwinnable

Question 67

When will the court dismiss an application

Answer 67

Where the court is satisfied the respondent's case has no real prospect of success

Question 68

If a claimant is seeking equitable relief, how do they claim default judgment?

Answer 68

They must make an application to the court (14 days after service of claim form and particulars)

Question 69

What is the most important factor the court will consider for an application to set aside default judgment?

Answer 69

The promptness and any delays in the application to set aside by the defendant

Question 70

What does the bringing of a claim after the expiry of the limitation period amount to?

Answer 70

It amounts to abuse of process, meaning it can be struck out

Question 71

Where the claimant has applied for default judgment, but they have failed to do something in the lead up, what may happen to the judgment?

Answer 71

It may be set aside for "some other good reason"

Question 72

Can an interim remedy be made before the claim form and particulars have been issued?

Answer 72

Yes

Question 73

Where the claimant has applied for default judgment, but it turns out that the defendant HAD served the acknowledgment of service in the required time, what will the judge do?

Answer 73

The judge MUST set aside the default judgment, as the acknowledgment of service has been served within the required time

Question 74

Where a claimant uses Part 8 procedure, can they obtain default judgment?

Answer 74

No

Question 75

If a respondent's claim is merely arguable, should summary judgment be granted?

Answer 75

Yes