Civil (7)
Terms
undefined, object
copy deck
- What is an interim application?
- An application seeking an order or a direction to help the case
- When is an interim application likely to be made?
- Usually between the commencement/issue of the claim and trial however can be made before as in the case of an interim injunction
- What is an on notice application? (4)
-
- The other side knows of the application
- They have copies of all your documents
- They have chance to respond
- Both sides attend the hearing - What is a without notice application?
-
- Other side doesn't know until heard
- All documentation is then served
- A return date is given for all parties to attend another hearing
- Judge then checks whether the maintain the order - When are without notice applications made?
- When notifying the other side of the application will defeat its purpose.
- What documents will an Applicant for security for costs require?
-
1. Application Notice (N244)
2. Draft Order
3. W/S in support
4. Estimate of Costs to the End of Trial
5. Issue fee - When an application has been made, when is the hearing?
- The hearing will be on the return date CPR 23APD2.2
- What will need to be served on the respondent?
-
1. Application Notice (N244)
2. Draft Order
3. W/S In Support
4. Estimate of Costs to the End of Trial
5. Details of the return date
(CPR 23.7 and CPR6)
- What will the other side be able to give?
-
A witness statement in reply
(CPR 23APD9) - What is security for costs?
- It is security for COSTS and not damages
- Who can make an application?
-
Normally only a defendant can apply – but a claimant could apply in respect of a counterclaim
- What form of security could the court give in relation to a security for costs order?
-
1. Parent company guarantee
2. Payment into court
3. Bank guarantee
4. Charge - What happens to the claim until the security is paid?
- Proceedings are stayed
- Where can the main grounds be found in relation to a security of costs application?
- CPR 25.13(2)
- Re Unisoft
-
Claimant would not (as opposed to may not) be able to pay. Can take into account future expectations.
- Jirehouse Capital v Beller
-
“reason to believe†is lower threshold than balance of probabilities
- What is the main factor that the court will take into account in relation to the ensuring access to justice?
-
Claimant’s ability to pay Article 6 ECHR (Olatawura v Abiloye)
- Sir Lindsay Parkinson v Triplan - factors to consider (section A)
-
A) The strength of the claimant’s claim:
1. As it bona fide and not a sham?
2. Does the C have a reasonable prospects of success?
3. Has the defendant made any admissions?
- Sir Lindsay Parkinson v Triplan - factors to consider (section B)
- Is the defendant using the application oppressively to stifle a genuine claim
- Sir Lindsay Parkinson v Triplan - factors to consider (section C)
- Delay in making the application (as the application is an equitable remedy – delay defeats equity).
- Sir Lindsay Parkinson v Triplan - factors to consider (section D)
- Has the defendant’s conduct caused the claimant’s want of means
- What is the purpose of a witness statement for interim applications?
- To prove the facts upon which your client's argument is based
- Claimant would not (as opposed to may not) be able to pay. Can take into account future expectations.
- Re Unisoft
- There D needs to show some “reason to believe†that the C will be unable to pay which is lower threshold than inability to pay on the balance of probabilities
- Jirehouse Capital v Beller
- Olatawura v Abiloye
- The court must carry out a balancing act, balancing the injustice to the C with the injustice to the D.
- What must the court consider before concluding that a security for costs order would stifle a valid claim?
- Whether the claimant can raise money from other sources.
- In terms of determining if a security for costs order would stifle a valid claim, what must the C show?
- It is sufficient for the C to show that he would probably (not definitely) be unable to pursue the claim
- For the purpose of a summary judgment application, what does 'no real prospect' mean?
- Real means not fanciful, imaginary or false.
- Swain v Hillman
- A summary judgment application is not a mini-trial.
- For the purpose of a witness statement, what should the first paragraph do?
-
(1) Introduce the person;
(2) Confirm that the contents of the statement is true to the best of my K and B;
(3) Evidence of matters told be others, those are true to the best of my K and B;
(4) the source of the information appears.
- What must you include in the top right hand corner of a witness statement?
- Information regarding the witness statement. See PD on Evidence and witness statements
- What are the words 'make oath and say', rather than 'will' relevant to?
- An affidavit