Interim applications, summary judgment, strike out and costs (W7) Flashcards

Question

CPR 24.2 - Grounds for summary judgment

Answer 1

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if-- (a) it considers that-- (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at trial.

Answer 2

(1) The court may give summary judgment against a claimant in any type of proceedings. (2) The court may give summary judgment against a defendant in any type of proceedings except-- (a) proceedings for possession of residential premises against-- (i) a mortgagor; or (ii) a tenant or a person holding over after the end of his tenancy where occupancy is protected within the meaning of the Rent Act 1977 or Housing Act 1988; and (b) proceedings for an admiralty claim in rem.

Answer 3

(1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed-- (a) an acknowledgment of service; or (b) a defence, unless-- (i) the court gives permission; or (ii) a practice direction provides otherwise. ' (1A) In civil proceedings against the Crown, a claimant may not apply for summary judgment until after expiry of the period for filing a defence in CPR 15.4 (2) If a claimant applies for summary judgment before a defendant against whom the application is made has filed a defence, that defendant need not file a defence before the hearing. (3) 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. (4) A practice direction may provide for a different period of notice to be given.

Answer 4

(1) If the respondent to an application for summary judgment 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 summary judgment hearing. (2) 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 summary judgment hearing. (3) Where a summary judgment hearing is fixed by the court of its own initiative-- (a) any party who wishes to rely on written evidence at the hearing must-- (i) file the written evidence, and (ii) unless the court orders otherwise, serve copies on every other party to proceedings, at least 7 days before the date of the hearing; (b) any party who wishes to rely on written evidence at the hearing in reply to any other party's written evidence must--- (i) file the written evidence in reply; and (ii) unless the court orders otherwise, serve copies on every other party to the proceedings, at least 3 days before the hearing. (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.

Answer 5

When the court determines a summary judgment application it may-- (a) give directions as to the filing and service of a defence; (b) give further directions about the management of the case. - The court may attach conditions when it makes an order.

Answer 6

- The word 'claim' means: (1) a part of a claim, and (2) an issue on which the claim in whole or part depends. - An application for summary judgment under CPR 24.2 may be based on (1) a point of law or (2) the evidence which can be reasonably expected to be available at trial or the lack of it, or (3) a combination of these.

Answer 7

- Application notice must include a statement that it is an application for summary judgment made under Part 24. - The application notice or the evidence contained or referred to in it or served with it must-- (a) identify concisely any point of law or provision in a document on which the applicant relies, and/or (b) state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue (as the case may be) or successfully defending the claim or issue, and in either case that the applicant knows of no other reason why the disposal of the claim or issue should await trial. (4) Unless the application notice itself contains all the evidence (if any) on which the applicant relies, the application notice should identify the written evidence on which the applicant relies. (5) The application notice should draw the attention of the respondent to CPR 24.5(1). (6) Where the claimant has failed to comply with Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol, an action for summary judgment will not normally be entertained before the defence has been filed, or the time for doing so has expired.

Answer 8

- The hearing of the application will normally take place before a Master or District Judge. - The Master or DJ may direct that the application be heard by a High Court Judge (if the case is in the High Court) or a Circuit Judge (if the case is in the County Court)

Answer 9

Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order.

Answer 10

(1) Judgment on the claim (2) Striking out or dismissal of the claim (3) Dismissal of the application (4) A conditional order - A conditional order is an order which requires a party: (1) to pay a sum of money into court, or (2) to take a specified step in relation to his claim or defence, and provides that that party's claim will be dismissed or his statement of case be struck out if he does not comply.

Answer 11

- If an order for summary judgment is made against a respondent who does not appear at the hearing of the application, the respondent may apply for the order to be set aside or varied. - On the hearing of such an application, the court may make any order it thinks just.

Answer 12

Where the court dismisses the application or makes an order that does not completely dispose of the claim, the court will give case management directions as to the future conduct of the case.

Answer 13

Easyair Ltd principles: - must have a 'realistic' as opposed to 'fanciful' prospect of success - must not conduct a 'mini trial' - but must take into account not only the evidence actually placed before it on application for summary judgment, but also the evidence that can be reasonably be expected to be produced at trial - court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and affect the outcome of the case - if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. - it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction

Answer 14

examples: - claimant company was in liquidation was a compelling reason to refuse summary judgment where there were latent claims and cross-claims between the parties - summary judgment held to be inappropriate where similar issues remained to be determined at a trial between the defendant and other parties - summary judgment has been held to be inappropriate where it depended upon a short point of construction of the terms of an insurance contract where the terms were said to be standard terms widely used in the insurance market. - claimant's case appearing to be 'devious and crafty' and not 'plain and straightforward' - where the defendant is an executor or administrator who can raise facts by reference to the existence or absence of letters, accounts or such like of the deceased which make it reasonable to require full investigation - where the claimant's case tended to show that he had acted harshly and unconscionably and it is thought desirable that if he were to get judgment at all it should be in the full light of publicity - libel, slander, malicious prosecution or false imprisonment cases may require trial by jury

Answer 15

- Overall burden of proof rests on the applicant to establish that there are grounds to believe the respondent has no real prospect of success and that there is no other reason for trial. - If the applicant for summary judgment addresses credible evidence in support of their application, the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for trial. The standard of proof is not high, it suffices merely to rebut the applicant's statement of belief. - When deciding whether the respondent has some real prospect of success, the court should not apply the standard which would be applicable at the trial, namely the balance of probabilities

Answer 16

- A claimant may be prevented from obtaining summary judgment, in whole or in part, if the defendant can show that he intends to raise a set off or counterclaim which raises a triable issue, i.e. has some prospect of succeeding. - If the facts relied upon by the defendant amount to a set off, the claimant may obtain summary judgment only to the extent that the value of the claim overtops the value of the set off. If the claim value is the same or lower than the alleged value of the set off, the claimant's application for summary judgment will be dismissed. - If the defendant raises a triable counterclaim which cannot be deployed as a set off, the court may grant summary judgment to the claimant but with a stay of enforcement pending the trial of the counterclaim. - if the claim value overtops the alleged value of the counterclaim, the stay of enforcement may be made conditional upon the defendant paying the difference by a specified date. Alternatively, the stay of enforcement may be limited to the alleged value of the counterclaim.

Answer 17

- Under previous rules, a practice prevailed concerning the setting up of a defence of set off in proceedings on a dishonoured bill of exchange, cheque or promissory note. - In an action on a dishonoured bill of exchange by one of the immediate parties to the bill against the other, a claim for an unspecified amount of damages under a contract for the sale of goods did not afford a defence, nor was it available as a set off or counterclaim, nor did it afford a ground for a stay of execution.

Answer 18

- Before exercising the power, the court should identify the purpose of imposing a condition and should satisfy itself that the condition it has in mind represents a proportionate and effective means of achieving that purpose. - 5 principles when considering whether a conditional order for payment into court or security for costs should be made on an application for summary judgment: (1) In a case where D has no real prospect of successfully defending the claim, the court must not impose a condition requiring payment into court or the provision of security with which it is likely to be impossible for D to comply. (2) The burden is on D to establish on the balance of probabilities that it would be unable to comply with a condition requiring payment into court (3) In order to discharge that burden D must show, not only that it does not itself have the necessary funds, but that no such funds would be made available to it. (4) It is not incumbent on D to a summary judgment application to adduce evidence about the resources available to it, at any rate in a case where no prior notice has been given that the claimant will be seeking a conditional order. (5) The court's power to make a conditional order on a summary judgment application is not limited to a case where it is improbable that the defence will succeed. Such an order may be made e.g. if there is a history of failure to comply with court orders or there is real doubt as to whether litigation is in good faith. - In the case of a corporate D, it is important to keep in mind that the question is not whether the company's shareholders can raise the money but whether the defendant company has established that funds to make the payment will not be made available to it by its beneficial owners. - Conditional order may be made where whilst it it possible that it might succeed, a defence/claim is particularly weak and very vulnerable to attack.

Answer 19

(2) Court may strike out a statement of case if it appears to the court-- (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order. (3) When the court strikes out a statement of case it may make any consequential order it considers appropriate. (4) Where-- (a) the court has struck out a claimant's statement of case; (b) the claimant has been ordered to pay costs to the defendant; and (c) before the claimant pays those costs, the claimant starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out, the court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid. (6) If the court strikes out a claimant's statement of case and it considers that the claim is totally without merit-- (a) the court's order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Answer 20

(1) This rule applies where-- (a) the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and (b) the party against whom the order was made does not comply with it. (2) A party may obtain judgment with costs by filing a request for judgment if-- (a) the order referred to...relates to the whole of a statement of case; and (b) where the party wishing to obtain judgment is the claimant, the claim is for-- (i) a specified amount of money, (ii) an amount of money to be decided by the court, (iii) delivery of goods where the claim form gives the defendant the alternative of paying their value, or (iv) any combination of these remedies. (3) Where judgment is obtained under this rule in a case to which para (iii) applies, it will be judgment requiring the defendant to deliver goods, or if the defendant does not do so, pay the value of the goods as decided by the court. (4) The request must state that the right to enter judgment has arisen because the court's order has not been complied with. (5) A party must make an application in accordance with Part 23 if they wish to obtain judgment under this rule.

Answer 21

a claim form, particulars of claim where these are not included in the claim form, defence, Pt 20 claim, or a reply to a defence; and includes any further information given in relation to them voluntarily or under court order by CPR 18.1

Answer 22

- During the pre-trial stages of proceedings - Often together with an application for summary judgment - Court may exercise the power at any stage during proceedings - The court may act of its own volition

Answer 23

- Grounds (a) and (b) cover statements of case which are unreasonably vague, incoherent, vexatious, scurrilous or obviously ill founded and other cases which do not amount to a legally recognisable claim or defence - Ground (c) covers cases where the abuse lies not in the statement of case itself but in the way the claim or defence has been conducted. In many circumstances such a strike out would seem unduly harsh unless the party was warned of the risk of their statement of case being struck out if they did not comply with the rule, PD or court order in question. - Other options in the case of non-compliance with a rule or PD: order the non-complying party to pay a sum of money into court, awarding costs on the indemnity basis, ordering a party to pay money into court and awarding interest at a higher or lower rate

Answer 24

- Denton principles have a direct bearing even though they relate to applications for relief from sanctions rather than to impose a sanction. Applying the Denton three-stage test, it may be held that a judge was entitled to dismiss a strike out application because the breach of CPR or PD was not sufficiently serious - The ultimate question for the court however is fundamentally different i.e. r.3.4 requires consideration of proportionality of strike out while relief from sanction has to proceed on the basis that the sanction was properly imposed.

Answer 25

While many applications can be made without evidence in support (e.g. if the statement of case discloses no reasonable grounds for bringing or defending the claim), the applicant should consider whether facts need to be proved and, if so, whether evidence in support should be filed and served.

Answer 26

- The court may make an order under r.3.4 of its own initiative - If a strike out application is made, the court cannot refuse it on a reading of the papers unless it first hears oral argument on behalf of the applicant.

Answer 27

- those claims which set out no facts indicating what the claim is about, which are incoherent and make no sense, or which contain a coherent set of facts but those facts even if true, do not disclose any legally recognisable claim against the defendant - a defence may fall within ground (a) where it consists of a bare denial or otherwise sets out no coherent statement of facts, or the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim. - those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides - may be struck out on a matter of law; but it is not appropriate to strike out a claim in an area of developing jurisprudence - a statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence - where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend

Answer 28

- 'using that process for a purpose or in a way significantly different from its ordinary and proper use' - there has to be an abuse, and striking out has to be supportive of the overriding objective - the proportionality of the sanction is in issue - the striking out of a valid claim should be the last option; if the abuse can be addressed by a less draconian measure, it should be.

Answer 29

- precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in earlier ones. - the rule applies not to matters which were decided by a court, but to matters which might have been decided but were not - applies not just to subsequent litigation between the same parties but also to parties to subsequent proceedings who were not joined as parties to the earlier proceedings - depends upon all the circumstances: it does not follow that a matter should have been raised in earlier proceedings simply because it could have been raised in those proceedings.

Answer 30

' the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which had been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had the full opportunity of contesting the decision in the court in which it was made' is an abuse of process.

Answer 31

- CPR 3.1(3) states that, when the court makes an order, it may (a) make it subject to conditions, and (b) specify the consequence of failure to comply with the order or a condition. - This, combined with CPR 3.4(2)(c), confirms that the court may make a conditional order in the form of an order stating that, unless by a particular date a parties complies with a procedural order made by the court, their statement of claim shall be struck out and their claim dismissed. The consequence follows automatically upon the party's failure to comply with the condition, without any further order of the court. - In making an unless order containing such sanction, a judge should consider carefully all the circumstances of the case and whether the sanction is appropriate. - Where an unless order has effect, the court retains jurisdiction to grant the defaulting party relief (usually in the form of extension of time for complying) if that party makes an application under CPR 3.8. - Where an unless order has had this effect, the defaulting party's opponent may obtain judgment by complying with CPR 3.5. In such event, the party against whom the claim was made may obtain judgment by filing a request for judgment, but otherwise they must make an application in accordance with CPR 23 if they wish to obtain judgment under CPR 3.5. - At the hearing of such an application, (a) the court's function is limited to deciding what order should properly be made to reflect the sanction which has already taken effect, and (b) the operation of the sanction does not lie in the discretion of the court, as it is only if there is an application under CPR 3.8 by the defaulting party that the court is required to consider whether, in all the circumstances, it is just to make an order granting relief from the sanction automatically imposed.

Answer 32

(1) The court has discretion as to-- (a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid. (2) If the court decides to make an order about costs-- (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order. (3) The general rule does not apply in the following proceedings-- (a) proceedings in the CoA on an application or appeal made in connection with proceedings in the Family Division; or (b) proceedings in the CoA from a judgment, direction, decision or order given or made in probate proceedings or family proceedings. (4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including-- (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply. (5) The conduct of the parties includes -- (a) conduct before, as well as during, proceedings and in particular the extent to which the parties followed the PD - Pre-Action Conduct or any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; (d) whether a claimant who has succeed in the claim, in whole or in part, exaggerated its claim. (6) The orders which the court may make under this rule include an order that a party must pay-- (a) a proportion of another party's costs; (b) a stated amount in respect of another party's costs; (c) costs from or until a certain date only; (d) costs incurred before the proceedings have begun; (e) costs relating to particular steps taken in the proceedings; (f) costs relating only to a distinct part of the proceedings; and (g) interest on costs from or until a certain date, including a date before judgment.

Answer 33

(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs; (a) on the standard basis; or (b) on the indemnity basis. but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

Answer 34

(2) Where the amount of costs is to be assessed on the standard basis, the court will-- (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they are reasonably or necessarily incurred; and (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

Answer 35

(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.

Answer 36

(4) Where -- (a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or (b) the court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis, the costs will be assessed on the standard basis.

Answer 37

(5) Costs incurred are proportionate if they bear a reasonable relationship to-- (a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue; (c) the complexity of litigation; (d) any additional work generated by the conduct of the paying party; (e) any wider factors involved in the proceedings e.g. reputation or public importance; (f) any additional work undertaken or expense incurred due to the vulnerability of a party or witness. (6) Where the amount of a solicitor's remuneration in respect of non-contentious business is regulated by any general orders made under the Solicitors Act 1974, the amount of costs to be allowed in respect of any such business will be decided in accordance with those orders rather than CPR 44.3 and 44.4. (7) Paragraphs (2)(a) and (5) do not apply to cases commenced before 1st April 2013 or costs incurred in respect of work done before 1st April 2013.

Answer 38

(1) The court will have regard to all the circumstances in deciding whether costs were-- (a) if it is assessing on the standard basis-- (i) proportionately or reasonably incurred; or (ii) proportionate and reasonable in amount; or (b) if it is assessing costs on the indemnity basis-- (i) unreasonably incurred; or (ii) unreasonable in amount. (2) In particular, the court will give effect to any orders which have already been made. (3) The court will also have regard to-- (a) the conduct of all the parties, including in particular-- (i) conduct before, as well as during, proceedings; and (ii) the efforts made, if any, before and during the proceedings in order to try and resolve the dispute; (b) the amount or value of any money or property involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty/novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved; (f) the time spent on the case; (g) the place where and the circumstances in which work or any part of it was done; and (h) the receiving party's last approved or agreed budget.

Answer 39

The party in whose favour the order is made is entitled to their costs in respect of the part of the proceedings to which the order relates, no matter what costs orders are made in the proceedings.

Answer 40

The party in whose favour the court makes an order for costs at the end of the proceedings is entitled to their costs of the part of the proceedings to which the order relates.

Answer 41

The decision about costs is deferred to a later occasion, but if no later order is made, the costs will be costs in the case.

Answer 42

- If the party in whose favour the costs order is made is awarded costs at the end of the proceedings, they are entitled to their costs of the part of the proceedings to which the order relates. - If any other party is awarded costs at the end of the proceedings, the party in whose favour the final costs order is made is not liable to pay the costs of any other party in respect of the part of the proceedings to which the order relates.

Answer 43

- Where e.g. a judgment or order is set aside, the party in whose favour the order is made is entitled to the costs which have been incurred as a consequence. - This includes the cost of preparing for and attending any hearing at which the judgment or order which has been set aside was made; preparing for and attending any hearing to set aside; preparing for and attending any hearing at which the court orders proceedings to be adjourned; any steps taken to enforce a judgment or order which has subsequently been set aside.

Answer 44

- The party in whose favour the costs order is made is entitled not only to that party's costs in the respect of the proceedings in which the court makes the order but also to that party's costs of the proceedings in any lower court. - In the case of an appeal from the Divisional Court, the party is not entitled to any costs incurred in any court below the Divisional Court.

Answer 45

Each party is to bear their own costs of the part of proceedings to which the order relates whatever costs order the court makes at the end of the proceedings.

Answer 46

- It is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs in any case. - Each party who intends to claim costs must prepare a written statement of those costs showing separately in the form of a schedule-- (a) the number of hours to be claimed; (b) the hourly rate to be claimed; (c) the grade fee earner; (d) the amount and nature of any disbursement to be claimed, other than counsel's fee for appearing at the hearing; (e) the amount of legal representative's costs to be claimed for attending or appearing at the hearing; (f) counsel's fees; and (g) any VAT to be claimed on these amounts. (3) The statement of costs should follow as closely as possible Form N260 and must be signed by the party or the party's legal representative. Where a party is-- (a) an assisted person; (b) a LSC funded client; (c) a person for whom civil legal services within the meaning of LASPO 2012 are provided under arrangements made for the purposes of that Act; (d) represented by a person in the party's employment, the statement of costs need not include the certificate appended at the end of Form N260. (4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event-- (a) for a fast track trial, not less than 2 days before the trial; and (b) for all other hearings, not less than 24 hours before the time fixed for the hearing.

Interim applications, summary judgment, strike out and costs (W7) Flashcards

(70 cards)