Civil Litigation SGS 7 Interim Applications

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billsykes
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204281
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Civil Litigation SGS 7 Interim Applications
Updated:
2013-03-10 12:30:18
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Civil Litigation
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Civil Litigation
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  1. Zahar made out a cheque for £10,000 in favour of Ron in respect of building work carried out by Ron on Zahar’s house. On presentation, the cheque was dishonoured and so Ron issued a claim against Zahar,claiming £10,000 due on the cheque. Zahar filed a defence of set-off and a counter claim for £6,000 on the ground that Ron’s building work was defective. Ron has applied for summary judgment for payment of the cheque.

    In these circumstances, which ONE of the following is the likely order to be made when the application for summary judgment is heard by the court?

    [A]  Judgment on the claim.

    [B]  Dismissal of the application.

    [C]  Judgment for the claimant in the sum of £4,000; dismissal of the application in respect of £6,000.

    [D]  Judgment for the claimant in the sum of £4,000, with judgment for the defendant on the counter claim in the sum of £6,000.
    [A]  Judgment on the claim.

    [[A] is CORRECT. Ron will obtain judgment on the claim because the cheque rule applies. See Sime 15th edition at 21.34 to 21.44 inclusive. Also, see the White Book 2012 at the editorial note at 24.2.7]
  2. Which ONE of the following statements is WRONG in respect of an application for summary judgment?

    [A]  The court can give summary judgment on a claim for specific performance. [See Practice Direction 24 paragraph 7]

    [B]  On a claim for summary judgment, the court can make a conditional order for payment of money into court. [See Practice Direction 24paragraphs 4 and 5]

    [C]  The respondent must file and serve their witness statements at least 7days before a summary judgment hearing.

    [D]  The applicant must file and serve their witness statements in reply to the respondent’s witness statements at least 7 days before the summary judgment hearing.
    [D]  The applicant must file and serve their witness statements in reply to the respondent’s witness statements at least 7 days before the summary judgment hearing.

    [[D] is WRONG, and is therefore the CORRECT answer. The correct period for an APPLICANT to file and serve their witness statement is at least 3 days before the summary judgment hearing. See CPR Rule 24.5(2)]
  3. A defendant applies for summary judgment against the claimant in the High Court.

    Which ONE of the following statements is the CORRECT test for the Master to apply in deciding whether or not to grant summary judgment?

    [A] The claimant will not succeed on the claim and there is no othercompelling reason why the case should be disposed of at trial.

    [B]The claimant has no real prospect of succeeding on the claim.

    [C] The claimant has no prospect of succeeding on the claim and there is noother reason why the case should be disposed of at trial. 

    [D] The claimant has no real prospect of succeeding on the claim and thereis no other compelling reason why the case should be disposed of at trial.
    [D] The claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at trial.

    [[D] is CORRECT. See CPR Rule 24.2]
  4. Freya wishes to apply for summary judgment against Lucy.

    Which ONE of the following statements sets out the CORRECT time period for serving the application on Lucy?

    [A]  At least 14 days before the hearing.

    [B]  At least 3 days before the hearing.

    [C]  At least 21 days before the hearing.

    [D]  At least 7 days before the hearing.
    [A]  At least 14 days before the hearing.

    [[A] is CORRECT. The respondent must be given at least 14 days notice of the date fixed for the hearing. See CPR Rule 24.4(3)]
  5. You represented Pretty Products Ltd in a breach of contract case against Michel in which they were awarded judgment last month. Michel has now issued a further claim against them, in which he simply writes in the claim form ‘I want compensation for all the hassle the defendant caused me in the previous court case’.

    Which ONE of the following statements is CORRECT in these circumstances?

    [A]  The only ground for striking out the claim is that it discloses no reasonable grounds for bringing the claim.

    [B]  Pretty Products Ltd could apply to strike out the claim on the ground that it disclosures no reasonable grounds for bringing the claim and on the alternative ground that the claim is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings. 

    [C]  Pretty Products Ltd’s only option is to apply for summary judgment against Michel. 

    [D]  Pretty Products Ltd should apply to strike out the claim on the ground that Michel has failed to comply with the rules on claim forms.
    [B]  Pretty Products Ltd could apply to strike out the claim on the ground that it disclosures no reasonable grounds for bringing the claim and on the alternative ground that the claim is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.

    [[B] is CORRECT. See CPR Rule 3.4(2) (a) and (b). It is very likely that there are no reasonable grounds for bringing this claim on thebasis “trouble and distress” allegedly caused in a previous court case. In addition, it is very likely that Michael’s claim would (amongst other arguments) be viewed as pointless and wastefullitigation justifying the application on the additional grounds inRule 3.4(2) (b)].
  6. Which ONE of the following statements is WRONG?

    [A] An application can only be made after a claim has been started.

    [B] An application can be dealt with by a telephone hearing.

    [C] Evidence at an interim application hearing can be given by affidavit.

    [D] Except in the most simple application, the applicant should bring to the hearing a draft of the order sought.
    [A] An application can only be made after a claim has been started.

    [[A] is WRONG, and is therefore the CORRECT answer. An application can be made before a claim has been started (i.e. pre-action). See Practice Direction 23A paragraph 5, CPR Rule 25.2 (1) and, for wider information, CPR Rule 23.2(4)] [B] An application can be dealt with by a telephone hearing.
  7. What is an interim application?
    An interim application is made when a party seeks an order or directions before the trial or substantive hearing of the claim.

    CPR 23.1 gives the court power to grant interim injunctions.
  8. What are some examples of interim applications?
    disclosure, interim injunctions, interim payments and time extensions
  9. Who may make an interim application?
    Orders are usually made by judges, masters and district judges

    - although several types of orders can only be made by high court judges (e.g. freezing injunctions and search orders)
  10. What are the parties to an interim application called?
    The parties to an interim application are called the applicant and respondent
  11. When can an interim application be made?
    As soon a it becomes apparent that it is necessary or desirable to make it
  12. What documents are generally needed to make an interim application?
    1. Form N244 (application notice) and

    2. A fee.

    3. Written evidence (usually in form of witness statement)

    4. Draft order.

    (and 5. Statement of costs)
  13. To whom does the applicant need to give these documents and generally when?
    Always file with the court. Don’t necessarily need to give to the other side – depends if its with or without notice.

    Must be served as soon as possible after its filed.

    Applicant must give the court at least 3 days before it has to deal with application
  14. Who will deal with an interim application?
    Master and DJ
  15. What else will the court decide at the end of an interim application?
    Costs!
  16. What may a party be able to do if it is unhappy with the outcome of an interim application?
    Do not renew the application unless there is a material change to the case.

    Consider appealing the decision.
  17. Instructing Solicitors act for Dodgy Garages Ltd (‘Dodgy’), who sold a Porsche motor car to Peter for £10,000. Peter has refused to pay for the car because he has clear evidence, in the form of a report from an independent reputable garage, that the car has numerous defects which will cost him £2,000 to rectify. The parties complied with the practice direction on pre-action conduct. Dodgy last week issued and served a claim form on Peter, claiming payment for the car. Advise Dodgy in respect of the following:

    i) What application it should make and why?
    ii) When it should make it
    iii) The test which would need to be satisfied in order for Dodgy’s application to succeed
    iv) What procedure should be adopted by Dodgy
    v) If Dodgy does apply, the order the court is likely to make
    • Summary judgment is a procedure by which any of the parties or the court can dispose of all or part of a claim without proceeding to trial. The aim is to promote the quick determination of cases, avoid long-running litigation and save costs. The procedure is set out in CPR 24.
    •                      
    • i.     Dodgy should apply for summary judgement (because most of the claim is undisputed –therefore D will have no real prospect of defending the claim).
    •                    
    • ii.      C may apply for SJ only after D has filed either an acknowledgement of service or a defence. r24.4 – time
    •                   
    • iii.     The court may grant summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if it considers both that:·     

    No real prospect of succeeding on aclaim or issue or the defendant has no real prospect of successfully defending the claim or issue, AND,·     

    There is no other compelling reason why the case or issue should be disposed of at trial (CPR 24.2)                  

    iv.     An application needs to be filed at court and served on other parties supported by evidence 14 days before the event. Form N244 should be used. A fee should be paid for the application.It is also good practice to attach a draft order. If respondent wishes to respond they have 7 days. Then applicant has 3 days to respond to that.                   

    v.      SJ in favour of Dodgy at least for £8K
  18. In respect specifically of summary judgment applications, are there any situations where a party is excluded from applying for summary judgment? If so, what are they?
    r24.3

    Proceedings for possession of residential premises against a mortgagor or tenant

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