Civil Litigation SGS 8 Interim Remedies

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billsykes
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204284
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Civil Litigation SGS 8 Interim Remedies
Updated:
2013-03-10 13:43:28
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Civil Litigation
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Civil Litigation
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  1. NB:

    In your civil litigation, civil evidence and remedies assessment, you will be assessed on remedies. This could be in the form of a number of MCQs and/or SAQs.
    However, please note that in your civil litigation, civil evidence and remedies assessment you will not be told that a particular question is a specific remedies question. You will however be able to identify that the question relates to remedies.
  2. Which ONE of the following statements is WRONG?

    [A]  The court may deal with an interim application without a hearing if the court does not consider that a hearing would be appropriate.

    [B]  Normally the application notice must be served on the respondent at least 2 clear days before the hearing date.

    [C]  An application notice must state what order the applicant is seeking and,briefly, why the applicant is seeking the order.

    [D]  In cases of exceptional urgency, an application may be made without serving an application notice.
    [B]  Normally the application notice must be served on the respondent at least 2 clear days before the hearing date.

    [[B] is WRONG and is therefore the CORRECT answer. The correct period is at least 3days before the hearing date. See CPR Rule 23.7(1)]
  3. Jenny suffers injuries at a privately owned hotel when she dives into the shallow end of the swimming pool. She has issued and served a claim on the hotel for personal injury and losses. A defence has been filed denying liability. Jenny wishes to apply for an interim payment to cover the cost of a daily carer.

    Which ONE of the following statements is CORRECT?

    [A]  An interim payment will not be ordered unless the hotel is insured.

    [B]  An interim payment will not be ordered because the hotel has not admitted liability.

    [C]  An interim payment will be ordered if the court is satisfied that Jenny is likely to obtain judgment for a substantial amount of money (other than costs) if the claim went to trial.

    [D]  The application for the interim payment must be served at least 14 days before the hearing and be supported by evidence.
    [D]  The application for the interim payment must be served at least 14 days before the hearing and be supported by evidence.

    [[D] is CORRECT.See CPR Rule 25.6(3)].
  4. Assume that a Master decides to order an interim payment.

    Which ONE of the following statements is CORRECT?

    [A] The Master must not order an interim payment of more than areasonable proportion of the likely amount of the final judgment.

    [B] In deciding on the amount of the interim payment, the Master mustignore any possibility of contributory negligence.

    [C] The award of the interim payment will be disclosed to the trial Judge atthe start of the trial.

    [D] The court has no power to order repayment of the interim payment if the hotel wins on liability at trial.
    [A] The Master must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

    [[A] is CORRECT. See CPR Rule 25.7(4)].
  5. Michel, who is resident in France, has sued Pretty Products Ltd in England for £20,000 damages for breach of a contract for the supply of goods to Michel in June last year. Michel’s address in France is incorrectly stated in the claim form. Michel claims this was an error, but has still not amended the address on the claim form. Pretty Products are worried about whether Michel will be able to pay their costs if they win.They wish to apply for security for costs against Michel.

    Which of the following is/are the WRONG advice in these circumstances?

    (i)  The court has no power to order Michel to give security for costs.

    (ii)  The court has a power to order Michel to give security for costs on the ground that Michel gave an incorrect address in the claim form.

    (iii)  The court will order Michel to give security for costs on the ground that he is ordinarily resident out of the jurisdiction.

    (iv)  The court has discretion to order Michel to give security for costs if it appears by credible testimony that there is reason to believe that Michel will be unable to pay the company’s costs if they win. Please select ONE of the following:

    [A]  (iii) and (iv) only

    [B]  (i), (iii) and (iv) only

    [C] (ii), (iii) and (iv) only

    [D] (i), (ii), (iii) and (iv)
    [B]  (i), (iii) and (iv) only

    [[B] is WRONG and therefore the CORRECT answer. See CPR Rule 25.12 and 25.13. Regarding each option listed in [B]: (i) The court does have a discretionary power to make an orderfor security of costs. (iii)  Michael is resident in France and therefore falls within theprovisions of Rule 25.13(2) (a) (ii) (iv)  Rule 25.13(2) (c) only applies where the claimant is acompany (condition (c) is NOT applicable to an individual)]
  6. David ordered a leather suite from Quality Sofas Limited during the last day of their summer sale. The original price was £5,000 but he got a 20%discount so that the sale price was £4,000. Under the terms of the contract there was nothing to pay until delivery. It was a term of the contract with Quality Sofas Limited, that the suite would be delivered by31st August 2012. It is now November 2012 and the suite has still not been delivered. David has informed them that he is treating non-delivery as a repudiatory breach and is not now prepared to accept delivery. He needs a suite before Christmas as he is entertaining family. He has just purchased the same suite from an alternative supplier, Luxury Leathers ,for £5,500. The suite has never been on sale at Luxury Leathers.

    Which of the following statements is CORRECT in relation to any remedythat David may have?

    [A] He can claim damages for non-delivery and recover the full £5,500 fromQuality Sofas Limited.

    [B] A claim for £1,500 in damages plus interest properly reflects his loss fornon-delivery.

    [C] He would be entitled to claim interest under the Late Payment ofCommercial Debts (Interest) Act 1998.

    [D] David has a claim for restitution damages and recovery of the £4,000 original purchase price.
    [B] A claim for £1,500 in damages plus interest properly reflects his loss for non-delivery.

    [[B] is CORRECT. The measure of damages for non-delivery/non-performance is the difference in the market price of the goods at the contractual date of delivery and the contract price. See Remedies Manual at Table 5.1 page 28. To recover £5,500 (the answer in [A]) would put the Claimant in a better position than had the contract been properly performed. His claim is therefore £5,500 less £4,000.]
  7. What documents must an interim application on notice include?
    Application notice (+fee)

    Evidence in support (norm witness statement or affidavit)

    Draft order

    (Schedule ofcosts)

    Application can be made with or without notice if it appears to the court that there are good reasons for not giving notice. An application for an interim remedy must also be supported by evidence, unless the court orders otherwise.

    If application is made without notice, the supporting evidence must state why notice has not been given.

    NB: Multiple applications – asked the court to hear applications at the same time.
  8. When may a party apply for an interim application?
    r.25.2 provides that an order for an interim remedy may be made at any time, including before the proceedings and after judgement has been given.

    However, the court will only grant an interim remedy before a claim has been made if (1) the matter is urgent, or (2) it is otherwise necessary to do so in the interests if justice, and – unless the court otherwise orders, a defendant may not apply for any of the orders listed in r25.1.1 before he has filed either an acknowledgement of service or a defence.
  9. When may a party make an application for security for costs?
    Where there may be a significant risk that the defendant will suffer the injustice of having to defend proceedings with no real prospect of being able to recover costs if the claimants are ultimately unsuccessful.

    Security of costs protect the defendant from not being able to recover costs.

    Made in the form of security/guarantee (usually sum of money paid to the court).

    WHEN???

    Application for SOC may be made at any stage but it should ideally be made promptly as soon as the facts are known. More need to be quick in SOC than other interim applications.
  10. What two conditions must a defendant satisfy in order to be granted Security for Costs?
    Must be:

    Just to make the order and;

    need one ground from r.25.13.

    [NB: Just = discretion]
  11. What is the procedure for applying for security for costs?
    Issue an application notice stating which of the grounds in CPR r25.13 applies

    Pay the relevant fee

    The application notice MUST be supported by evidence

    A draft order should be served with the application notice.
  12. In VERY simple terms, what is an interim payment?
    "Getting some damages early"
  13. Can a claimant apply for more that one order for interim payments?
    YES!
  14. What are the time limits for filing and serving evidence prior to a interim payment hearing?
    Application notice must be served at least 14 days prior to hearing.

    Respondent must file his evidence (in response) and serve it on the Applicant at least 7 days before the hearing.

    In reply, the Applicant must file and serve at least 3 days before hearing.
  15. Is an interim payment order only payable in a lump sum?
    No, the court may order an interim payment to be paid to the claimant in instalments
  16. What is the most common ground/limb on which an application for an interim payment is sought?
    Where 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 the defendant.

    r 25.7 (one of) all the grounds

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