Civil Litigation: Statements of Case and Interim Applications

Flashcards covering statements of case, counterclaims, amendments, requests for further information, interim applications, costs orders, summary judgment, interim injunctions, and interim payments in civil litigation.

Which documents are included in the definition of 'statements of case', and what documents are expressly excluded?

Statements of case encompass claim forms, particulars of claim, defences, counterclaims, replies, and responses to requests for further information. They do not include evidential documents such as witness statements or expert reports.

What formalities must appear in the heading of every statement of case?

Every statement of case must be headed with the title of the proceedings, stating the claim number, the name of the court, the full name of each party and their status, the signature of the solicitor's firm (if they prepared it), and a statement of truth.

What are the three methods for claiming interest in a claim based on breach of contract?

1. Under a contractual provision specifying a rate of interest payable on outstanding sums.
2. Under the Late Payment of Commercial Debts (Interest) Act 1998.
3. Under the court's statutory discretion pursuant to the Senior Courts Act 1981 (for High Court cases) or the County Courts Act 1984 (for County Court cases).

What interest rate is prescribed under the Late Payment of Commercial Debts (Interest) Act 1998?

The statutory rate is $8\%$ per annum over the Bank of England's base rate on the date the debt became due for payment.

What standard interest rates are awarded under the court's statutory discretion under the Senior Courts Act 1981 and the County Courts Act 1984?

The current standard rate is $8\%$ per annum for non-commercial cases, and $1\text{--}2\%$ per annum over the Bank of England base rate in commercial cases.

What specific additional contents must be included in the particulars of claim for a negligence claim involving personal injuries?

The claimant's date of birth, details of the personal injuries suffered, a separate schedule detailing past and future expenses and financial losses claimed, and an optional medical practitioner report concerning the claimant's injuries.

What are the three ways a defendant must respond to each allegation in a defence?

Each allegation must be denied, not admitted, or admitted. If an allegation is denied, the defendant must state reasons and provide their own version of events if different; a non-admission is made where the defendant has no knowledge and requires the claimant to prove the matter.

On whom does the burden of proof rest regarding limitation, and what must the defence specify if limitation is raised?

The defence must specify whether limitation expired under contract terms or under the Limitation Act 1980. Once raised, the burden of proof shifts to the claimant to prove that the claim is not time-barred.

On which three specific matters in a defence does the burden of proof fall upon the defendant?

1. Contesting a relevant criminal conviction.
2. Alleging a failure by the claimant to mitigate their loss.
3. Pleading contributory negligence.

What is the procedure and permission requirement for a defendant filing a counterclaim?

A defendant may file particulars of counterclaim together with the defence without court permission. If the defendant seeks to bring a counterclaim after filing the defence, the permission of the court is required via an application on notice.

What is the deadline for a claimant to file a defence to a counterclaim, and what is the consequence of failing to do so?

The claimant must file a defence to the counterclaim within $14\text{ days}$. Failure to do so allows the defendant to enter judgment in default on the counterclaim.

When is court permission required to make an additional (Part 20) claim against a third party for contribution or indemnity?

No permission is needed if the third party is already a party to the proceedings, or if the claim is made before or at the same time the defence is filed. Once a defence has been filed, the court's permission is required to make an additional claim against a third party who is not already involved.

What are the rules regarding amending a statement of case before and after the service of proceedings?

Before service of proceedings, amendments may be made without the court's permission. After service of proceedings, amendments may only be made with either the written consent of all parties or the permission of the court.

Under what three circumstances may the court allow an amendment to a statement of case after the relevant limitation period has expired?

1. To add or substitute a new claim arising out of the same or substantially the same facts as an existing claim against an existing party.
2. To correct a genuine mistake as to the name of an existing party (not their identity).
3. To alter the capacity in which an existing party claims.

What standard governs a Part 18 Request for Further Information?

The request must 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. The written response must be verified by a statement of truth.

What judicial officers typically hear interim applications?

Most interim applications are heard by a Master in the Royal Courts of Justice or by a District Judge in the County Court or a High Court District Registry.

What documents must generally accompany an interim application notice?

A witness statement stating why the order is sought and setting out factual evidence relied upon, a draft order, and, on the multi-track, a case summary to assist the judge.

What is the general notice requirement for serving an interim application notice and supporting evidence on the opponent?

The application notice, supporting evidence, and draft order must be served at least $3\text{ clear days}$ before the court hearing (excluding the day of the hearing).

Under what circumstances may an interim application be made without notice, and what duty applies to the applicant?

An application without notice may only be made where there is exceptional urgency or where the overriding objective is best achieved without notice. The applicant owes a duty of full and frank disclosure, requiring them to explain the lack of notice and disclose matters favourable to the opponent.

What right does a respondent have after an interim order is granted without notice, and what is the time limit?

The respondent must be served with the court order, application notice, and supporting evidence as soon as practicable, and they may apply to set aside or vary the order within $7\text{ days}$ of service of the order.

What is the effect of an order for '[Named party's] costs in any event'?

The named party is entitled to their costs of the interim application regardless of any costs orders made at the conclusion of proceedings. Unless fixed costs apply, these costs are normally summarily assessed at the hearing and ordered to be paid within $14\text{ days}$.

What is the meaning and effect of an interim order for 'costs in the case'?

Neither party recovers their costs at the interim stage; the liability to pay the interim application costs is determined at the conclusion of the proceedings, where the eventual loser of the litigation pays them.

What is the effect of an interim order of 'no order as to costs'?

Each party must bear their own costs of the interim application, regardless of what final costs orders are made at the end of the proceedings.

What are the two grounds the court must be satisfied of before granting summary judgment?

1. The opposing party has no real prospect of succeeding on the claim, defence, or issue.
2. There is no other compelling reason why the case or issue should be disposed of at trial.

How has the court interpreted the requirement of 'no real prospect of succeeding' in summary judgment applications?

It means the claim or defence is not more than merely arguable; the applicant must show that the opponent's case is fanciful, imaginary, unreal, or intrinsically unrealistic.

What are examples of 'other compelling reasons' that prevent summary judgment from being granted?

The need to allow more time for further investigation, the claim or defence being of a highly complex or technical nature, or the necessity to hear cross-examination of witnesses at trial.

What are the procedural time limits for filing and serving evidence on an application for summary judgment?

The applicant must file and serve the application notice, witness statement, and draft order at least $14\text{ days}$ before the hearing; the respondent must file and serve evidence at least $7\text{ days}$ before the hearing; and the applicant may file and serve reply evidence at least $3\text{ days}$ before the hearing.

What happens to the requirement to file a defence if a claimant applies for summary judgment before the defence is due?

The defendant is not required to file a defence before the summary judgment hearing because the proceedings are stayed for other purposes until the summary judgment application is determined.

What is a conditional order in a summary judgment application?

An order made where it appears possible that a claim or defence may succeed, but it is improbable that it will do so. The party is permitted to continue only if they pay a sum of money into court and/or take a specified procedural step.

What guidelines were established in American Cyanamid for granting interim prohibitory injunctions?

1. Whether damages would be an adequate remedy.
2. Whether the applicant's cross-undertaking in damages provides adequate protection.
3. The balance of convenience.
4. Preserving the status quo.
5. The relative strength of each party's case (if other factors are balanced).
6. Any special factors (e.g., public interest).

Why do the American Cyanamid guidelines not apply to mandatory interim injunctions?

Because mandatory injunctions compel a positive act rather than preserve the status quo, the court requires clear evidence that the claimant is likely to succeed at trial.

What criteria must a claimant satisfy to obtain a freezing injunction?

The claimant must demonstrate a good arguable case, provide sufficient evidence as to the existence and location of the relevant assets, and establish a real risk that the defendant will dispose of those assets to render any final judgment worthless. The application is made to a High Court judge supported by affidavit evidence.

What requirements must be established to obtain an interim search order?

The applicant must demonstrate an extremely strong prima facie case, show that they will suffer very serious harm if the order is not made, and prove that the respondent possesses incriminating material with a real possibility of its destruction or disposal. The application is made to a High Court judge supported by affidavit evidence.

At what stage of proceedings is a claimant permitted to apply for an interim payment?

The claimant cannot apply for an interim payment until after the time for the defendant to acknowledge service has expired.

What are the three alternative conditions under CPR 25.7 for obtaining an interim payment?

1. The defendant has admitted liability to pay damages or another sum of money.
2. The claimant has obtained judgment against the defendant for damages to be assessed or a sum to be awarded.
3. The court is satisfied that, if the case went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs).

What are the filing and service time limits for evidence in an interim payment application?

The applicant must serve the application notice at least $14\text{ days}$ before the hearing; the respondent must file and serve written evidence at least $7\text{ days}$ before the hearing; and the applicant must file and serve reply evidence at least $3\text{ days}$ before the hearing.

What restriction applies to the maximum amount the court can award as an interim payment?

The court must not order more than a reasonable proportion of the likely amount of the final judgment (a guideline ceiling of up to $75\%$ is typically applied, though it is not a hard-and-fast rule), taking into account contributory negligence and any counterclaims.

Does the existence of a counterclaim prevent the court from granting an interim payment?

No, the existence of a counterclaim does not preclude the court from granting an interim payment, though the court will take the counterclaim into account when calculating the amount to be awarded.