Unit 3

Question 1

What is a statement of case?

Answer 1

Formal documents in which the parties concisely set out their respective cases.

They are served between parties and filed at court.

Ensures that each party knows their opponet’s case at an early stage, enabling them to assess how strong it is, to determine what evidence is needed to counter if and to consider whether to make an offer to settle and on what terms.

At trial, the court will only decide on those issues that are raised in the statement of case.

Served in sequence.

Question 2

Statement of case sequence

Answer 2

1. (C) Claim form + particualrs of claim;

(D) If the case is contesed: defence;

If deemed necessary, the (C) will reply.

2. (C) Claim form + particualrs of claim;

(D) may file a counterclaim (+ defence);

The (C) will need to serve a defence to the counterclaim.

If any party requires additional details of another party’s case, they may file a request and a response to the request for futher information must be served.

Question 3

Part 16.2 CPR - Contents of a claim form

Answer 3

(1) The claim form must –

(a) contain a concise statement of the nature of the claim;

(b) specify the remedy which the claimant seeks;

(c) contain a statement of value in accordance with rule 16.3, where the claimant is making a claim for money;

(d) contain a statement of the interest accrued on that sum, where the only claim is for a specified sum; and

(e) contain such other matters as may be set out in a practice direction.

(1A) In civil proceedings against the Crown, as defined in rule 66.1(2), the claim form must also contain –

(a) the names of the government departments and officers of the Crown concerned; and

(b) brief details of the circumstances in which it is alleged that the liability of the Crown arose.

(1A1) In a claim to which Part 45 does not apply, no amount shall be entered on the claim form for the charges of the claimant’s legal representative, but the words ‘to be assessed’ shall be inserted.

(2) If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow.

(3) If the claimant is claiming in a representative capacity, the claim form must state what that capacity is.

(4) If the defendant is sued in a representative capacity, the claim form must state what that capacity is.

(5) The court may grant any remedy to which the claimant is entitled, even if that remedy is not specified in the claim form.

(Part 22 requires a claim form to be verified by a statement of truth)

Question 4

Part 16.3 CPR - Statement of vlaue to be included in the claim form

Answer 4

1) This rule applies where the claimant is making a claim for money.

(2) The claimant must, in the claim form, state –

(a) the amount of money claimed;

(b) that the claimant expects to recover –

(i) not more than £10,000; or

(ii) more than £10,000 but not more than £25,000; or

(iii) more than £25,000 but not more than £100,000; or

(iv) more than £100,000; or

(c) that the claimant cannot say how much is likely to be recovered.

(3) Subject to paragraph (3A) and (3AA), in a claim for personal injuries, the claimant must also state in the claim form whether the amount which they expect to recover as general damages for pain, suffering and loss of amenity is –

(a) not more than £1,500; or

(b) more than £1,500.

(3A) Where—

(a) a claim for personal injuries arises from a road traffic accident which occurred on or after 31st May 2021; and

(b) rules 26.8, 26.10 or 26.11 do not apply to that claim,

the claimant must state in the claim form whether the amount which the claimant expects to recover as general damages for pain suffering and loss of amenity is—

(i) not more than £5,000; or

(ii) more than £5,000.

(3AA) Where—

(a) a claim for personal injuries arises from a road traffic accident; and

(b) rule 26.10 applies to that claim, the claimant must state in the claim form whether the amount which the claimant expects to recover as general damages for pain, suffering and loss of amenity is—

(i) not more than £1,000; or

(ii) more than £1,000.”.

(3B) ‘Road traffic accident’ has the meaning ascribed to it by rule 26.9(3).

(4) Where a tenant of residential premises, or a contract-holder of an occupation contract of a dwelling under section 7 of the Renting Homes (Wales) Act 2016, claims an order against a landlord requiring the landlord to carry out repairs or other work, the claimant must also state in the claim form—

(a)whether the estimated costs of those repairs or other work is—

(i)not more than £1,000; or

(ii)more than £1,000; and

(b)whether the value of any other claim for damages is—

(i)not more than £1,000; or

(ii)more than £1,000.
(5) If the claim form is to be issued in the High Court it must, where this rule applies—

(a)state that the claimant expects to recover more than £100,000;

(b)state that some other enactment permits or requires the claim to be brought in the High Court and specify that enactment;

(c)if the claim is for personal injuries, state that the claimant expects to recover £50,000 or more; or

(d)state that the claim is to proceed in one of the specialist High Court lists and state which list.

(6) When calculating how much the claimant expects to recover, the claimant must disregard any possibility—

(a)that the court may make an award of—

(i)interest;

(ii)costs;

(b)that the court may make a finding of contributory negligence;

(c)that the defendant may make a counterclaim or that the defence may include a set-off; or

(d)that the defendant may (under section 6 of the Social Security (Recovery of Benefits Act 1997) be liable to pay direct to the Secretary of State part of any award of money made by the court to the claimant against the defendant.

(7) The statement of value in the claim form does not limit the power of the court to give judgment for an amount which it finds the claimant is entitled to.

Question 5

Part 16.4 CPR - Contens of the particulars of claim

Answer 5

(1) Particulars of claim must include—

(a)a concise statement of the facts on which the claimant relies; (outline all the facts giving rise to the dispute, you must demonstrate a CAUSE OF ACTION on which the claim will be based)

(b)if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);

(c)if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and the grounds for claiming them;

(d)if the claimant is seeking provisional damages, a statement to that effect and the grounds for claiming them; and

(e)such other matters as may be set out in a practice direction.

In a breach of contract claim, where the contract relates to the parties acting in the course of business, the C should confirm the D’s business in the particulars of claim.

(2) If the claimant is seeking interest they must—

(a)state whether they are doing so—

(i)under the terms of a contract;

(ii)under an enactment and, if so, which; or

(iii)on some other basis and, if so, what that basis is; and

(b)if the claim is for a specified amount of money, state—

(i)the percentage rate at which interest is claimed;

(ii)the date from which it is claimed;

(iii)the date to which it is calculated, which must not be later than the date on which the claim form is issued;

(iv)the total amount of interest claimed to the date of calculation; and

(v)the daily rate at which interest accrues after that date.

(Part 22 requires particulars of claim to be verified by a statement of truth).

Question 6

Part 16.5 CPR - Content of defence

Answer 6

(1) In the defence, the defendant must deal with every allegation in the particulars of claim, stating—

(a)which of the allegations are denied;

(b)which allegations they are unable to admit or deny, but which they require the claimant to prove; and

(c)which allegations they admit.

(2) Where the defendant denies an allegation—

(a)they must state their reasons for doing so; and

(b)if they intend to put forward a different version of events from that given by the claimant, they must state their own version.

(3) If a defendant—

(a)fails to deal with an allegation; but

(b)sets out in the defence the nature of their case in relation to the issue to which that allegation is relevant,

the claimant is required to prove the allegation.

(4) Where the claim includes a money claim, the claimant must prove any allegation relating to the amount of money claimed, unless the defendant expressly admits the allegation.

(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.

(6) If the defendant disputes the claimant’s statement of value under rule 16.3 they must—

(a)state why they dispute it; and

(b)if they are able, give their own statement of the value of the claim.

(7) If the defendant is defending in a representative capacity, they must state what that capacity is.

(8) If the defendant has not filed an acknowledgment of service under Part 10, they must give an address for service.

(Part 22 requires a defence to be verified by a statement of truth.)

Defence must include formalities required by the CPR, which include:
* the name of the court;
* the claim number;
* the parties;
* the title (DEFENCE);
* the date and signature of solicitors in the name of the firm;
* the statement of truth; and
* details of who is to be served and where

If the D alleges that the relevant limitation period for the claim has expired, the details of this mmust be given in the defence, when the LP began and expired, and whether it ran under the tems of a conract or under the Limitation Act 1980.

Burden of proof is normally transferred to the C to show the claim is not time-barred.

In some instances the burden of prood falls upon the D, specifically in relation to:
(a) contributory negligence; and
(b) a failure by the C to mitigate its loss.

Question 7

Part 16.6 CPR - Defence of set-off

Answer 7

16.6 Where a defendant—

(a)contends that they are entitled to money from the claimant; and

(b)relies on this as a defence to the whole or part of the claim,

the contention may be included in the defence and set off against the claim, whether or not it is also an additional claim.

D’s defence is that they should not have to pay the balance due to the C if they can establish they have a counterlcaim. It will set off the amount claimed and the C may have to pay the D damages.

Question 8

Part 16.7 CPR - Reply to defence

Answer 8

(1) If a claimant does not file a reply to the defence, the defendant must prove the matters raised in the defence.

(2) If a claimant—

(a)files a reply to a defence; but

(b)fails to deal with a matter raised in the defence,

the defendant must prove that matter even though it is not dealt with in the reply.

(Part 22 requires a reply to be verified by a statement of truth.)

Replies tend to be used if the C wants to repond to matters that have been raised in the defence but which are not covered in the particulars of claim.

Question 9

What style must be adopted when drafting statement of case?

Answer 9

Clear plain English

Question 10

When solicitor’s prepare a statement of case, who sign’s it?

Answer 10

The solicitor signs in the name of the firm

Question 11

What is a big ethical consideration for this topic?

Answer 11

A solicitor must not mislead the court

Do not make accusations without evidence

Question 12

What if a client has filed a statement of case and subsequently tells their solicitor before the litigation ends that it contains a material error, the effect of which is to mislead the court?

Answer 12

Solicitor should advise the client to amend the statement of acse and, if the client refuses cease to act. In order to keep client confidentiality, the solicitor should not inform the court or any other party of the reasons why they are no longer representing the client.

Question 13

Contents of particulars of claim for a claim based on breach of contract

Answer 13

Particulars of claim should deal with the essential material facts that will establish the cause of action.

(1) Status of the parties:
* confirm needed details about D (e.g. confirm D’s business)
* C should set out chronological events (may include pre-contractual matters if they are relevant to establishing the claim)
* Next set out the subtance of the matter, including legal elements that underpin the case.

(2) Existence of contract: set the scene
* date contract was signed
* subject matter
* in course of business or not
* oral/written
* consideration
* paragraph 17.3 PD 16 - if a claim if based on a written contract, a copy of the contract must be attached to or served with the particulars of claim.
* paragraphs 17.4 - if the claim if based on an oral contract, the contractual words used by whom, to whom, and where and when they were spoken should be specified.

(3) Terms: relevant express terms and/or implied terms

(4) Performance by C and [purported] by D
* include information concerning the dates that the goods were delivered/payment of the first instalment/what parts of the contract have been performed.

(5) Alleged breach and particularised (allegation of breach)
* section contains details of which terms were breached and specifically how.
* eg. failure to pay for the goods, late delivery or the poor quality of the items supplied.

(6) Factual consequences of breach (particulars of breach)
* continuation of chronological events where the C explains what happened as a result of what the D did wrong.
* eg. poor quality goods supplied to a retailer could not be sold on to consumers or that repair work had to be carried out.

(7) Damage and loss alleged and particularised
* the loss must be alleged generally, for example: by reason of the D’s breach thof the contract, the C has suffered damage and loss.
* The losses should then be itemised so it is clear to the D exactly what is being claimed from them and how this is calculated.

(8) Claim interest
* where the remedy is sought by the C is either damages or the repayment of a debt, the court may award interest on the sum outstanding, but only if claimed. In breach of contact cases, these are three alternative ways of claiming interest as follows:
* (a) contract states interest rate; or
* (b) statutory right on interest if commercial debt (Late Payment of Commercial Debts (Interest) Act 1998); (does not apply to unspecified (damages) claims or to a specifiied amount (a debt) owned by a consumer) The relevant rate of interest is 8% per annum above the Bank of England’s base rate on the date the debt become due for payment. The C is also entitled to a small, prescribed amount of statutory compensation for the inconvenience of having to recover the debt.
* (c) courts discretion: under s 35A of the Senior Courts Act 1981 (SCA 1981) in respect of High Court Cases, or under s 69 of the County Courts Act 1984 (CCA 1984) for Country Court cases.
* for specified claims the interest must be precisely claculated as a lump sum for the amount that has accrued from breach of contract up to the date of issue of the proceedings, plus a daily rate so it is easy to provide an updated total.

(9) Ending: summary, remedies date, signature, statement of truth, C’s address for service, to the Court/D.

Question 14

Contents of a particulars of claim for a claim based on negligence

Answer 14

Similar to a claim based on the breach of contract, but content will reflect the legal elements of duty of care, breach of that duty, causation and loss.

The courts has discretion under s 35A of the Senior Courts Act 1981 (SCA 1981) in respect of High Court Cases, or under s 69 of the County Courts Act 1984 (CCA 1984) for Country Court cases, to award interest. Interest is normally, awarded from when the loss was suffered.

Question 15

What is the purpose of the defence?

Answer 15

A defence sets out a D’s answer to the claim with the aim being so highlight what issues are in dispute.

The purpose of the defence is to narrow down the issues between the parties so that only the matters in dispute are tested in court.

Question 16

What are the effects of D’s responses to the C’s allegations?

Answer 16

Does the C need to prove the allegation, based on the D’s response?

Admin: C doesn’t need to prove
Non-admission: C needs to prove
Denial: C needs to prove

Question 17

Best practice points regarding drafting a defence

Answer 17

Take a systematic approch to ensure every allegation in the particulars of claim is addressed and nothing is admitted through omission (note - it is vital to not miss an allegation because the effect is that it is deemed to be accepted).

Mirror, as far as possible, the sequence of events in the particulars of claim, which the defence answering each paragraph in turn.

Point by point basis

Question 18

Part 20.2 CPR - Counterclaims and Other additional claims (scope)

Answer 18

(1) This Part applies to –

(a) a counterclaim by a defendant against the claimant or against the claimant and some other person;

(b) an additional claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and

(c) where an additional claim has been made against a person who is not already a party, any additional claim made by that person against any other person (whether or not already a party).

Question 19

What rules don’t apply to additional claims?

Answer 19

Part 20.3 Application of these Rules to additional claims:

(1) An additional claim shall be treated as if it were a claim for the purposes of these Rules, except as provided by this Part.

(2) The following rules do not apply to additional claims –

(a) rules 7.5 and 7.6 (time within which a claim form may be served);

(b) rule 16.3(5) (statement of value where claim to be issued in the High Court); and

(c) Part 26 (case management – preliminary stage).

(3) Part 12 (default judgment) applies to a counterclaim but not to other additional claims.

(4) Part 14 (admissions) applies to a counterclaim, but only rules 14.2(1), (4) and (5) and 14.4(1) apply to other additional claims.

(Rule 12.3(2) sets out how to obtain judgment in default of defence for a counterclaim against the claimant, and rule 20.11 makes special provision for default judgment for some additional claims).

Question 20

Part 20.4 CPR - D’s counterclaim against the C

Answer 20

(1) A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.

(2) A defendant may make a counterclaim against a claimant –

(a) without the court’s permission if the defendant files the counterclaim with the defence; or

(b) at any other time with the court’s permission.

(Part 15 makes provision for a defence to a claim and applies to a defence to a counterclaim by virtue of rule 20.3).

(3) Part 10 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.

Question 21

Part 20.5 CPR - Counterclaim against a person other than the C

Answer 21

(1) Subject to rule 20.7, a defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.

(2) An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.

(3) Where the court makes an order under paragraph (1), it will give directions as to the management of the case.

A counterclaim stipulates that, effectively, the D could have taken action against the C first and issued proceedings.

Question 22

Part 20.6 CPR - D’s additional claim for contribution or indemnity from another party

Answer 22

(1) A defendant who has filed an acknowledgment of service or a defence may make an additional claim for contribution or indemnity against a person who is already a party to the proceedings by filing and serving on that party a notice containing a statement of the nature and grounds of the additional claim.

(2) A defendant may file and serve a notice under this rule –

(a) without the court’s permission, if the defendant files and serves it –

(i) with the defence; or

(ii) if their additional claim for contribution or indemnity is against a party added to the claim later, within 28 days after that party files their defence; or

(b) at any other time with the court’s permission.

Indemnity:
A claim for an indemnity may arise where there is a contractual relationship between the D and the third party, in which the latter is obliged by the terms of a contract to indemnify the D if they are found liable for the claim. This may also arise by way of statute.

Contribution:
A claim for a contribution can be made where there are joint wrong-doers and the D argues that the third party is partly responsible for the harm the C has suffered.

Other additional claims:
The D may also made other additional claims without the court’s permission provided this is done tiehr before or at the same time as they file the defence.

Question 23

Structure of a defence and counterclaim

Answer 23

Heading: DEFENCE AND COUNTERCLAIM

Document will be sub-divided into two sections, defence outlined at the beginning and the counterlcaim following on immediately afterwards.

Best approach to drafting a counterclaim is to treat it as a standalone claim. The counterlcaim can refer back to the defence.

Permission to file a counterclaim is not requires from the court unless the defence has already been filed.

Question 24

How long does a C have to file a defence to a counterclaim?

Answer 24

The C must file a defence to the counterclaim within 14 days (unless an extention of up to 28 days has been agreed wit the D). If they fail to do so, the D may enter judgement in default on the counterclaim.

Question 25

Part 17.1 CPR - Amendment to statement of case

Answer 25

(1) A party may amend their statement of case, including by removing, adding or substituting a party, at **any time before it has been served on any other party**. (2) If his **statement of case has been served**, a party may **amend it only** – (a) with the **written consent of all the other parties**; or (b) **with the permission of the court.** (3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4. (4) A party who files a notice under Part 38 discontinuing all or part of a claim may amend their statement of case without the court’s permission to give effect to the discontinuance. (Part 22 requires amendments to a statement of case to be verified by a statement of truth unless the court orders otherwise) When applying for permission, the applicant should file a copy of the statement of case with the proposed amendments together with an application notice. The court will then decide whether or not to exercise its discretion to grant the application. The court will take into account: (i) the overriding obejctive of dealing with the case justly; and (ii) at proportionate costs. The court will need to strike a balance between inujustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if it is permitted.

Question 26

Part 17.4 CPR - Amendements to statement of case after the end of a relevant limitation period.

Answer 26

(1) This rule applies where – (a) a party applies to amend their statement of case in one of the ways mentioned in this rule; and (b) a period of limitation has expired under – (i) the Limitation Act 19801; (ii) the Foreign Limitation Periods Act 19842; or (iii) any other enactment which allows such an amendment, or under which such an amendment is allowed. (2) The **court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.** (3) The court may allow an amendment to correct a mistake as to the name of a party, but only where the **mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.** (4) The court may allow an amendment to **alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.** (Rule 19.6 specifies the circumstances in which the court may allow a new party to be added or substituted after the end of a relevant limitation period(GL))

Question 27

Part 18 CPR - Request for further information

Answer 27

(1) The court may at any time order a party to – (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case. (2) Paragraph (1) is subject to any rule of law to the contrary. (3) Where the court makes an order under paragraph (1), the party against whom it is made must – (a) file their response; and (b) serve it on the other parties, within the time specified by the court. (Part 22 requires a statement of case, including a response to be verified by a statement of truth) (Part 53 (defamation) restricts requirements for providing further information about sources of information in defamation claims) At any time, either the court or the parties may request further information, and if successful, a party will be ordered to: (a) clarify any matter that is in dispute; or (b) give additional information in relation to any such matter.

Question 28

What is the procedure for making or responding to Part 18 requests?

Answer 28

Making the request: * If either party requires further information, they must (first) serve a written request on the other party, allowing a reasonable time for the response. * A request should be concise and strictly confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their own case or to understand the case they have to answer. * Requests must be made as far as possible in a single comprehensive document (may be sent by letter or a separe document) * Any request must be headed with the name of the court, the title and number of the claim, and identify that it is a Part 18 request. The request should be set out in separate numbered paragraphs, and state the date for a response. Responding to a request: * Response must be in writing, dated and signed by the party or their solicitor. It should set out the same information as the request and then give details of the response. * reponse must be served on all the parties; * filed with the court; and * veritfied by a statement of truth. If the request for further information is not responded to, or cannot be complied with, an application may be made to the court under Part 18. The court will grant an order if it is satisfied that the request is confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their case or to understand the case against them.

Question 29

What are interim applications?

Answer 29

Applications that are made after litigation starts but before the trial

Question 30

Who is considered the 'respondent' to an interim application?

Answer 30

The person against whom the order it sought and such other person as the court may direct.

Question 31

What is an application notice?

Answer 31

A document in which the applicant states their intention to seek a court order.

Question 32

What is a hearing and how can it be conducted? | Interim application related

Answer 32

The occasion on which any interim or final decision is or may be made by a judge, at which a person is, or has a right to be, heard in person, by telephone, by video or by any other means which permits simultaneous communication.

Question 33

Part 23.2 CPR - Where to make an [interim] application

Answer 33

(1) The general rule is that an application must be made to the court or County Court hearing centre where the claim was started. (2) If a claim has been transferred to another court, or transferred or sent to another County Court hearing centre since it was started, an application must be made to the court or the County Court hearing centre to which the claim has been transferred or sent, unless there is good reason to make the application to a different court. (3) If the parties have been notified of a fixed date for the trial, an application must be made to the court where the trial is to take place. (4) Subject to paragraph (5), if an application is made before a claim has been started, it must be made to the court where the claim is most likely to be started unless there is good reason to make the application to a different court. (5) An application made in the County Court before a claim has been started may be made at any County Court hearing centre, unless any enactment, rule or practice direction states otherwise. (6) If an application is made after proceedings to enforce judgment have begun, it must be made to the court or County Court hearing centre which is dealing with the enforcement of the judgment unless any enactment rule or practice direction states otherwise.

Question 34

Part 23.3 CPR - Application notice to be filed

Answer 34

An applicant must file an application notice unless— (a) a rule or practice direction states otherwise; or (b) the court dispenses with the requirement.

Question 35

Part 23.4 CPR - Notice of an application

Answer 35

A copy of the application notice must be served on each respondent unless a rule, practice direction or court order permits otherwise.

Question 36

Part 23.5 CPR - Time when an application is made

Answer 36

Where an application must be made within a specified time, it is made in time if the application notice is received by the court within that time.

Question 37

Part 23.6 CPR - What an application notice must include

Answer 37

An application notice must state – (a) what **order the applicant is seeking**; and (b) **briefly, why the applicant is seeking the order.** (Part 22 requires **an application notice to be verified by a statement of truth** if the applicant wishes to rely on matters set out in the application notice as evidence) It will be necessary to set out the facts the party is relying on in support of, or for opposing, the application.

Question 38

Part 23.8 CPR - Applications which may be decided with/without a hearing

Answer 38

(1) The **court may deal with an application without a hearing** if— (a) the **parties agree the terms of the order sought**; (*consent order*) (b) the parties agree to dispense with a hearing; or (c) the court does not consider that a hearing would be appropriate. (2) If the parties agree to dispense with a hearing, a party may not without the court’s permission apply to have the order set aside, varied or stayed. (3) If the court decides the application without a hearing under paragraph (1)(c) and does so without giving the parties an opportunity to make representations— (a) a party affected by the court’s order may within such period as the court may specify apply to have the order set aside, varied or stayed; (b) if no period is specified, the application must be made within 7 days after the date the order was served on the party applying; and (c) the order must contain a statement of the right to make such an application. (4) An application under paragraph (3) shall be considered at an oral hearing unless the court decides and states in an order that the application is totally without merit. (5) If the court decides under paragraph (4) that the application is totally without merit, an application under paragraph (3) may be made for reconsideration without an oral hearing.”. The parties must provide the court with any material it needs to be satisfied that it is appropriate to make the order. A letter will usually suffice.

Question 39

Procedure for making an interim application

Answer 39

The applicant must complete an application notice and Form N244 should be used. If the issue is straight forward, the applicant will complete the box to be found on the second page of Form N244. If there is insufficient space, a witness statement may be filed at the same time. The party may also rely on the contens of a statement of case, such as the particulars of claim. Application must be verified by a statement of truth.

Question 40

What evidence in support should be included with an application notice? | (interim applications)

Answer 40

Witness statement should be made by the person best able to address relevant points from personal knowledge. If the application is more technical, such as for the amendment of a statement of case, this is likely to be the solicitor, whereas in other situations, it may be the client. The statement should: (a) **include the factual information and the evidence in support of the application**; and (b) **anticipate the opponent's case, where appropriate**. There must be sufficient detail to persuade the court to make the order. NOTE - all the evidence is written, so extra care needs to be taken when drafting the application. You can attach relevant documents as exhibits.

Question 41

What is the purpose of a draft order?

Answer 41

Practice Direction 23A states that except in the most simple of applications, the applicant should attach a draft of the order sought to assist the judge.

Question 42

Part 23.7 CPR - Service of a copy of a application notice

Answer 42

(1) A copy of the application notice must be served— (a) **as soon as practicable after it is filed**; and (b) **at least [clear] 3 days before the court is to deal with the application unless a different time limit is stated in a rule, practice direction or court order.** (*this timeframe is to allow the respondent to object to the application should they wish to do so*) (2) If a copy of the application notice is to be served by the court, the applicant must, when hey file the application notice, file a copy of any supporting written evidence. (3) When a copy of an application notice is served it must be accompanied by – (a) a copy of any supporting written evidence; and (b) a copy of any draft order which the applicant has attached to the application. (4) If – (a) an application notice is served; but (b) the period of notice is shorter than the period required by these Rules or a practice direction, the court may direct that, in the circumstances of the case, sufficient notice has been given and may hear the application. (5) This rule does not require written evidence – (a) to be filed if it has already been filed; or (b) to be served on a party on whom it has already been served. CLEAR DAYS - weekends are not included. Remember - documents are deemed served on the second day after being sent by first class post provided this is a business day, so that would also need to be taken into account when making calculations.

Question 43

Orders made without notice | (interim applications)

Answer 43

General rule: application must be made on notice to the other party. * this ensures the opponent is aware so they may file evidence is response and arrange for attendance at the hearing. Exceptions: 1. where filing the order is a matter of exceptional urgency; or 2. the overriding objectove of the CPR would be best achieved by making an order without notice. Where an application is made without notice to the respondent, the evidence must explain why notice was not given. Applicant has a duty of full and frank disclosure. Applicant must not take advantage of the R's absence at the hearing and must draw the court's attention to evidence and arguments they reasonably anticipate the respondent would wish to make.

Question 44

What are the most common types of interim applications made without notice?

Answer 44

**Freezing injunction:** Restain a party from removing their assets from the jurisdiction. If notice was given of such an application, the respondent could simply transfer their assets prior to the hearing. The court must be satisfied that the applicant has a good arguable claim and there is a real risk the respondent will dispose of their assets so as the defent the enforcement of an eventual judgement. **Search order:** Compels the respondent to allow their premises to be searched by the applicant, where the applicant believes that the respondent has documents or property belonging to them. Giving notice would allow the respondent to remove/hide the items they supposedly have. The court must - (i) be satisfied that the applicant has a strong case; (ii) they will suffer serious harm if the order is not made; and (iii) the respondent has incriminating materials in their possession which cannot be ontains by other means. Applications for freezing injuctions and search order are made to a **High Court** judge and must be **supported by evidence in the form of an affidavit.**

Question 45

What document copies must be served on the respondent as soon as it is practicable do so if an order is made on an application without notice?

Answer 45

(a) the court order; (b) the applicaito notice; and (c) any supporting eviddence.

Question 46

Can a repondent apply to set aside or vary an order for an application without notice?

Answer 46

The R may apply to set aside or vary the order within 7 days of service of the order upon them.

Question 47

What is the general rule under PD 23A in relation to telephone hearings and video conferencing?

Answer 47

PD 23A actively encourages that when an interim application with a time estiate of 1 hour of less should be conducted by telephone if at all possible. Exception: applications without notice cannot be heard over the phone.

Question 48

What would interim costs be used for?

Answer 48

Consider that every interim application will involve the parties incurring expenditure for collecting evidence, preparing the notice of application and support witness statement, and attending the hearing. A court fee is also payable. At the end of any interim application, the judge will decide the issue of costs (pay as you go litigation).

Question 49

What is the general rule in relation to costs?

Answer 49

Loser pays the winner's fees Thus, if an application is granted, it is normal to order the respondent to pay the applican't costs. Note - a party that wants to amend their statement of case start in a weak position, hence they may have to pay the costs of the application even if they win.

Question 50

# Interim costs orders Term: [Named party's] costs

Answer 50

**Effect:** The party named in the order is entitled to their costs of the interim application whatever other costs orders are made in the proceedings. These costs are normally summarily assessed and ordered to be paid within 14 days. eg. C's costs, meaning that the D must pay the C's costs. **When would this apply?** When there is a clear winner, the unsuccessful party would be ordered to pay the costs.

Question 51

# Interim costs orders Term: Costs in the case

Answer 51

**Effect:** In an order for costs in the case, no party is named, and at this stage, neither party can recover their costs. It only becomes apparent who is to pay the costs of the interim application at the conclusion of the proceedings. The ultimate loser of the litigation will also be liable. **When would this apply?** If the court makes a conditional order, for example, that the D may continue to defence the proceedings but only if they file a full defence within 14 days. If they fail to do so, only then would the C receive the costs of the interim application.

Question 52

# Interim costs orders Term: No order as to costs

Answer 52

**Effect:** Each party is to bear their own cost of the interim aplication whatever costs orders are made at the end of the proceedings. **When would this apply?** This order is made when the outcome of the interim application is effectively a draw with neither party being perceived to be at fault.

Question 53

What is a summary judgement? And what is its purpose?

Answer 53

Procedure by which the court may decide a claim or issue without a trial. If the D has a weak defence, the C would almost certainly succeed at trial but this would cost them additional time and money - the C can file for a summary judgement. A D may apply for a summary judgement, if the C filed a weak particulars of claim or one which has no legal basis.

Question 54

Part 24.2 CPR - Types of proceedings in which summary judgement is available

Answer 54

The court may give summary judgment— (a) against a claimant in any type of proceedings; (b) against a defendant in any type of proceedings except proceedings for possession of residential premises against a mortgagor or tenant or contract-holder, or against a former tenant or former contract-holder holding over with protected occupancy.

Question 55

# Summary Judgement Part 24.4 CPR - Timing of applications and hearing

Answer 55

(1) A **claimant may not apply for summary judgment until the defendant against whom the application is made has filed an acknowledgment of service or a defence, unless**— (a) **the court gives permission; or** (b) **a rule or practice direction states otherwise.** (2) In civil proceedings against the Crown, as defined in rule 66.1(2), a claimant may not apply for summary judgment until after expiry of the period for filing a defence specified in rule 15.4. (3) In a claim— (a) for specific performance or rescission of an agreement (whether in writing or not) for the sale, purchase, exchange, mortgage or charge of any property, or for the grant or assignment of a lease or tenancy of any property, with or without an alternative claim for damages; or (b) for the forfeiture or return of any deposit made under such an agreement, the claimant may apply for summary judgment at any time after the claim form has been served, unless a rule or practice direction states otherwise. (4) If a party applies for summary judgment before a defendant has filed a defence, the defendant by or against whom the application is made need not file a defence before the hearing. (5) Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days’ notice of— (a) the date fixed for the hearing; and (b) the issues which it is proposed that the court will decide at the hearing. (6) A rule or practice direction may provide for a different period of notice to be given.

Question 56

Part 24.5 CPR - Application notice and evidence

Answer 56

(1) The application notice must— (a) state that the application is for summary judgment; (b) identify concisely any point of law or document relied upon; (c) set out or attach any written evidence on which the applicant relies; (d) state that the applicant believes the respondent has no real prospect of succeeding on the claim, defence or issue to be determined; (e) state that the applicant knows of no reason why the disposal of the claim, defence or issue should await trial; and (f) draw the respondent’s attention to their right to rely on evidence opposing the application. (2) In claims falling within rule 24.4(3), the application notice must also have attached to it the text of the order sought by the claimant and must be served on the respondent not less than 4 days before the hearing of the application. (3) If a party wishes to rely on written evidence at the hearing, other than in a claim under rule 24.4(3), they must file and serve copies of such evidence on every other party at least— (a) 7 days before the hearing in the case of a respondent’s evidence, or evidence of any party where the hearing is fixed by the court of its own initiative; (b) 3 days before the hearing in the case of an applicant’s evidence in reply, or reply evidence of any party where the hearing is fixed by the court of its own initiative. (4) This rule does not require written evidence— (a) to be filed if it has already been filed; or (b) to be served on a party on whom it has already been served.

Question 57

Part 24.3 CPR - Grounds for summary judgement

Answer 57

The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if— (a) it considers that the **party has no real prospect of succeeding on the claim, defence or issue**; and (b) there is **no other compelling reason why the case or issue should be disposed of at a trial.** Some cases will clearly not be suitable for summary judgements, like those that involve complex issues that need proper investigation at trial or difficult questions of law.

Question 58

# Summary judgements 'no real prospect'

Answer 58

To determine whether the C has a real prospect of succeeding in their claim/the D in defencing their defence, the court will consider the evidence and this will vary from case to case.

Question 59

# Summary judgements 'compelling reason'

Answer 59

Judge must also be satisfied that there are compelling reasons to allow the mater to proceed to trial. Most common reasons include: 1. the need to allow more time for the matter to be investigated 2. the claim/defence is of a highly complicated and/or technical nature so it can only be properly understood with all the evidence that would be available at full trial 3. the need to hear from witnesses, particularly if one of the central issues (such as the terms of a contact) is disputed oral evidence

Question 60

What must the respondent to a summary judgement seek to establish if they want the proceedings to continue?

Answer 60

The respondent should concentrate on establishing a compelling reason to allow the proceedings to continue and not attempt to argue their case in its entirety. The defendant respondent need only succeed in preventing the C from proving one aspect to ensure the dismissal of the application for summary judgement.

Question 61

Procedure of applying for a summary judgement

Answer 61

1. The applicant applies with Form N244 and a witness statement in support 2. The respondent must be given at least 14 days' notice of the hearing date; and file and serve any written evidnce at least 7 days before the hearing. 3. If the applicant wishes to rely on further evidence, this must be filed and served at least 3 days before the hearing.

Question 62

# Possible order for a summary judgement application Judgment of the claim

Answer 62

C has succeeded in their application for summary judgment and the matter will proceed to enforcement.

Question 63

# Possible order for a summary judgement application The striking out or dismissal of the claim

Answer 63

The D has succeeded in their application to dispose of the C's claim and the case comes to an end.

Question 64

# Possible order for a summary judgement application The application is dismissed

Answer 64

The applicant has failed to bring the case to an early conclusion and it will not proceed towards trial

Question 65

# Possible order for a summary judgement application Conditional order

Answer 65

The applicant has not been granted, but equally the respondent has not suceeded in having it dismissed. Neither side has won. A conditional order will be made where the court concludes it is possible, but not probable, that the claim or defence may succeed. The party will be allowed to continue with the litigation provided they pay a sym of money into court ot take a specified step in relation to their claim.

Question 66

# Summary judgements Cost orders in relation to summary judgements

Answer 66

The cost order awarded will depend on the type of claim and the outcome of the application: * C succeeded in obtaining a summary judgement for a specified sum - the court may award fixed costs under Part 45. C may request a higher figure if their costs exceed the fixed costs under Part 45, and to ask for summary assessment of the costs. * C succeeded in obtaining a summary judgement for an unspecified claim - usual rule is that the winner is granted their costs. The costs will be summarily assessed and a further hearing will be listed to assess the damages payable by the D (a disposal hearing). * D secures summary judgement - entire claim is struck out, and the court will order the C to pay the D's costs of the whole claim, subject to summary assessment. * Application dismissed - proceedings will continue and the unsuccessful party will that the winner's costs of the summary judgement hearing. * Conditional order - the usual order will be for the costs in the case.

Question 67

Who can apply for an interim injunction?

Answer 67

Either party may apply for (and be granted) an interim injunction in support of their cause of action. The right to obtain an interim injunction is ancillary and incidental to a pre-existing cause of action. It is granted to preserve the status quo pending the court’s decision on the rights of the parties and the grant to the claimant of the relief to which their cause of action entitles them. This may or may not include a final injunction. The court will have no jurisdiction to make an immediate or anticipatory freezing injunction based on allegations that the company is in breach of contract in that respect.

Question 68

When can a party apply for an interim injunction?

Answer 68

A party may seek an interim injunction at any time after proceedings have been commenced and in exceptional cases, even beforehand. The court must be satisfied that the matter is urgent or it is otherwise desirable in the interests of justice. Granted before trial - INTERIM INJUNCTION * they remain in force until the matter comes to trial (or until further order), at which point the court will decide whether or not the make a final injunction.

Question 69

What is an injunction?

Answer 69

Distinguishable from other court orders because breach if punishable as a contempt of court. They are a discretionary remedy and may only be granted when damages are not an adequate remedy for the applicant. Primarily, an injunction seeks to maintain the status quo until the trial. They will aim to prevent the D from taking certain steps, but can also order a party to take action, such as stop committing a nuisance.

Question 70

What guidelines does the court follow when considering an application for an interim injunction? | American Cyanamid Co v Ethicon Ltd

Answer 70

When deciding whether to grant an interim injunction, the court will determine whether: 1. there is a serious question to be tried; 2. damages are an adequate remedy for either side; 3. the balance of convenience lies in favour of granting or refusing the injunction; and 4. whether there are any special factors.

Question 71

# Interim injunction What is the function of a cross-undertaking?

Answer 71

If an interim injunction is granted, the applicant must undertake to the court to pay any damages that the respondent (or any other party affected by the order) sustains by reason of the injunction, if it subsequently transpires that the injunction ought not to have been granted.

Question 72

Part 25.3 CPR - How to apply for an interim remedy

Answer 72

(1) The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice. (2) An application for an interim remedy must be supported by evidence, unless the court orders otherwise. (3) If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given. (Part 3 lists general powers of the court) (Part 23 contains general rules about making an application)

Question 73

Procedure for making an application for an interim injunction

Answer 73

1. Application notice with evidence in support (witness statement) 2. Orders obtained with notice * interim injunctions are usually obtained on notice * they last until the trial of the C's action unless they are set aside earlier by the court 3. Orders obtained without notice * If the applicant makes an application without giving notice, the **evidence in support of the application must state the reasons why notice has not been given.** * Usually, freezing injunctions and search orders.

Question 74

Two forms that an injunction without notice can take

Answer 74

1. The court may fix a date for a further hearing with all parties present, in which case it lasts until the date specified for that hearing. If the D successfully argued that the injunction should not be granted, it will be set aside. 2. Rather than fixing a hearing date, an injunction without notice may simply tell the D that they may apply on notice for the order to be varied or set aside. In the meantime, the injunction remains in force until trial or further order.

Question 75

Part 25.6 CPR - Interim payments - general procedure

Answer 75

(1) The **claimant may not apply for an order for an interim payment before the end of the period for filing an acknowledgment of service applicable to the defendant against whom the application is made.** (2) The claimant may **make more than one application for an order for an interim payment.** (3) A copy of an application **notice for an order for an interim payment must** – (a) be **served at least 14 days before the hearing of the application**; and (b) be **supported by evidence.** * the evidence should set out the amount requested, what it will be used for, the amount of the sum of money that is likely to be awarded at final judgement, and the reasons for believing that the grounds required by the CPR are satisfied. * documents in support of the application should be exhibited in the witness statement. (4) If the **respondent to an application for an order for an interim payment wishes to rely on written evidence at the hearing, he must**– (a) file the written evidence; and (b) **serve copies on every other party to the application,** **at least 7 days before the hearing of the application.** (5) If the **applicant wishes to rely on written evidence in reply**, he must – (a) file the written evidence; and (b) serve a copy on the respondent, **at least 3 days before the hearing of the application.** (6) This rule does not require written evidence – (a) to be filed if it has already been filed; or (b) to be served on a party on whom it has already been served. (7) The court may order an interim payment in one sum or in instalments. (Part 23 contains general rules about applications)

Question 76

Part 25.7 CPR - Interim payments - conditions to be satisfied and matters to be taken into account

Answer 76

(1) The court may only make an order for an interim payment where any of the following conditions are satisfied – (a) the **defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant**; (b) the **claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed**; (c) it is **satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim**; * usually an order for an interim payment will only be made if there is likely to be a delay in the assessment of damages, perhaps because the situation is ongoing or particular complex. * Ground (c) has a high burden of proof. The C must prove, on the balance of probalities, that they will succeed and it is not enough that the court considers it likely they will do so. (d) the following conditions are satisfied – (i) the claimant is seeking an order for possession of land (whether or not any other order is also sought); and (ii) the court is satisfied that, if the case went to trial, the defendant would be held liable (even if the claim for possession fails) to pay the claimant a sum of money for the defendant’s occupation and use of the land while the claim for possession was pending; or (e) in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied – (i) the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the court cannot determine which); and (ii) all the defendants are either – (a) a defendant that is insured in respect of the claim; (b) a defendant whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988 or an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself; or (c) a defendant that is a public body. (4) The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. (5) The court must take into account – (a) contributory negligence; and (b) any relevant set-off or counterclaim.

Question 77

What is the purpose of an interim payment?

Answer 77

Advance payment on account of any damages, debt or other sum (excluding costs) that a D may be held liable to pay. Enables C who has a strong case on liability to avoid the financial hardship that might otherwise be suffered because of any delay duraing the period between the start of the claim and its final determination.

Question 78

What should the C do before making an application to the court for an interim payment?

Answer 78

C should try to negotiate with D or the D's insurance company to obtain a voluntary interim payment.

Question 79

What orders can the court make in relation to an interim payment application?

Answer 79

Having estanlished their entitlement to an interim payment, the court has discretion in relation to two questions: (a) Should an order for an interim payment be made? * If the issues are complicated or difficult questions of law arise, the court may decide not to order an interim payment at all. (b) If yes, what should the amount be? * If the application succeeds, the court cannot order a sum of more than a reasonable proportion of the likely amount of the final judgement and must take into account contributory negligence and any counterclaim. The court will try and calculate what figures is indisputably due to the C and then determimnet what the D is able to pay. The court can order an interim payment in one sum or in instalments.

Question 80

What effect will interim payments have on trial?

Answer 80

The trial judge will not be told about any interim payment order or voluntary payment until after they have determined all issues of liability and quantum, unless the D consents. As the purpose of keeping any payment secret is to avoid the trial judge's decision being influenced in any way, it is difficult to see when a D would give their consent.