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Revision notes Dispute Resolution - distinction quality CIVIL LITIGATION
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Lecture notes of 56 pages for the course Dispute Resolution at ULaw (Revision notes.)
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SUMMARY JUDGMENT – PART 24 CPRWhat is Summary judgment is a procedure by which the court can decide a claim or a particular issue without a trial.
Summary
Judgment? The existence of Summary Judgment acknowledges that certain cases need not run to trial; the aim of the
procedure is to facilitate a quick determination of case, avoid long-running litigation and save costs where a trial is
unnecessary.
Procedure The application should include:
Application Notice (Form N244)
Supporting evidence (witness statement),
Fee (currently £255)
Draft order
Claimant must wait until Defendant has filed an Acknowledgement of Service or a Defence, unless court gives
permission.
D may apply for summary judgment at any time, but should be without delay and usually prior to or at the time
of filing of directions questionnaires
Defendant must be given 14 days’ notice of the date fixed for hearing (notice served at least 14 days before
hearing - CPR 24.4(3)
The DEFENDANT should file and serve evidence at least 7 days BEFORE the hearing - CPR 24.5(1)
If the CLAIMANT wishes to respond to the defendant's evidence, he should do so at least 3 days BEFORE the
hearing - CPR 24.5(2)
Grounds CPR 24.2 the court may give summary judgment if:
The Claimant has no real prospect of succeeding on the claim 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.
No Real Prospect of Succeeding on or Defending the Claim
In order to defeat an application for summary judgment, the respondent needs more than just an arguable case.
It has to be one that has a "real, as opposed to a fanciful, chance of winning" - Swain v Hillman (1999)
Commonly, applications will focus on PD.24, para 1.3: -
o A point of law, which means the defendant, has no real prospects of succeeding in his claim
o Evidence which can reasonably be expected to be available at trial, or the lack of it, which means the
defendant has no real prospects of succeeding e.g. where it is clear beyond question that the
statement of case is contradicted by all the documents
No Other Compelling Reason to Try the Case or Issue
The following may constitute compelling reasons:
Need to investigate
The defendant may need time to investigate the claim, not having had the opportunity to do so, and
such investigation might provide it with real prospects of success
e.g. if the defendant has been unable to contact a witness
Where one party holds all of the factual cards:
Summary Judgment can be sought prior to disclosure. It is therefore possible that, in certain cases, one
party will be in possession of majority of the evidence before they are under an obligation to disclose.
Where the facts are wholly in the claimant's hands and it would be unjust to enter judgment without
giving the defendant the opportunity to establish a defence in the light of disclosure, or after serving a
request for further information - Harrison v Bottenheim (1878)
, Questionable conduct by the claimant:
Summary judgment has been refused where the claimant's conduct can be questioned, for instance
where they are being dishonest or devious - Miles v Bull (1969)
The case is particularly complex:
Summary judgment is not intended to be a substitute for a trial in which the court can make a detailed
investigation of all of the issues. Therefore, particularly complex claims are less suited to Summary Judgment
(Three Rivers District Council v Bank of England (No. 3) (2001))
The case is on a novel point of law for which there is little prior authority
Swain v Hillman (1999)
Possible orders Make a judgment on claim (where Claimant makes application)
by court Striking out or dismissal of claim,
Dismiss application,
Conditional order
Require either party to pay a sum of money into court, OR
To take a specified step in relation to his claim or defence, as the case may be and provides that
party’s claim will be dismissed or his statement of case will be struck out if he does not comply.
Likely to be made where it appears to court that a claim or defence may succeed but improbable to
do so
Costs Where Claimant is successful:
If claim is for a specified sum - usually fixed costs
If claim is for an unspecified sum - claimant’s costs of making application and then a date fixed to assess the
rest of costs
If D secures summary judgment: Defendant’s costs of the claim (including pre-action costs) and if not agreed, will
be subject to a summary judgment
If a conditional order is made: costs in the case.
1
, INTERIM PAYMENTS ORDERS
PART 25 CPR
What is an An interim payments order requires a party to make an advance payment of damages, a debt or other sum (excluding costs),
Interim which a Defendant may be held liable to pay
Payments
Order? Claimant should first try to negotiate with Defendant or Defendant’s insurance company
Must wait until after the time for acknowledging service has expired, and may apply for more than one application
The idea behind this power is that a claimant can avoid the financial hardship of any delay between commencing the claim and
its final determination
Procedure The claimant may NOT make an application until after the time for acknowledging service
(10.7.1) The claimant MAY make more than one application
Textbook
An application notice must be:
Supported by evidence
Served at least 14 days before the hearing
If the defendant wishes to rely on written evidence, this must be served at least 7 days before the hearing
If the claimant wishes to use evidence in reply, this must be: Served at least 3 days before the hearing
Evidence The application must be accompanied by evidence of:
(10.7.1) The amount of the payment being sought
Textbook The items or matters in respect of which the interim payment is sought
The likely amount of the final judgment
The reasons for believing the conditions for an interim payment are satisfied
Any other relevant matters
Grounds The applicant must provide, on the balance of probabilities, that:
(10.7.2)
Textbook 1. The Defendant has admitted liability to pay damages or some other sum of money
2. The Claimant has obtained judgment against the Defendant for damages to be assessed or for a sum of money to be
assessed
3. The Court is satisfied that if the Claimant went to trial the Claimant would obtain judgment for a substantial amount of
money from the defendant. (The court has held that this is a high burden- litigation inevitably involves risk, and so
essentially the court must be satisfied that the applicant will succeed at trial, not merely that this is likely - British and
Commonwealth Holdings PLC v Quadrex Holdings Inc
4. In a claim where there are two or more defendants and an order is sought against one or any:
a) The Court is satisfied that if the claim went to trial the Claimant would obtain judgment for a substantial amount
of money against at least one of the defendants (but cannot determine which),
b) All the Defendant’s liability will be insured (Road Traffic Act 1998), Motor Insurers Bureau Agreement, Motor
Insurers Bureau acting for itself), or
c) Defendant is a public body
NOTE
There is no need for C to show the need for payment or that he will suffer prejudice if he does not receive it. However, if delay
in assessment of damages is unlikely to be substantial, court may be reluctant to exercise discretion unless there is a special
reason. There is a high burden of proof – the court must essentially believe that the applicant will succeed - Stringman v
McArdle
Defendant cannot contest an application on grounds of poverty, but can provide sufficient detail of his financial position as
evidence in reply to application
Determining If the applicant can establish an entitlement to an interim payment, the court will then consider:
Amount/ The 1. Whether to make an order at all: the court may decline to make an order if the issues are complicated or if complicated
Court’s questions of law arise
Discretion
2. The amount of the order if made:
- The court must not make an interim payment of more than a “reasonable proportion of the likely amount of the
final judgment” and will consider what sum the defendant is able to pay.
Interest If the defendant is ordered to make an interim payment that ultimately is more than the final judgment, the court will likely
order that the outstanding sum be paid back to the defendant with interest (see - 10.7.3 Textbook)
2
, SECURITY FOR COSTS
PART 25 CPR
What is it? Defendant can ask the court to exercise discretion and order Claimant to provide security for costs that the
Defendant is likely to be awarded if he defeats the claim.
The order requires the claimant to provide security that the defendant can use to enforce any costs order made in
his favour in the event that the claimant fails to pay costs awarded by the court.
The Court may make an order for security for costs if:
a) It is satisfied having regards to all the circumstances of the case that it is just to make such an order&
b) One or more of the grounds in Part 25 applies CPR 25.13 - 25.14
Procedure Defendant should apply as soon as the facts justifying application are known, ideally in directions questionnaire
Defendant should write to Claimant first (and ask if willing to provide security voluntarily)
Where application is made to court, it must be supported by written evidence (often in witness statement), with
aim to:
Establish ground exists
Persuade the court it is just to exercise its discretion, and
Justify the amount sought
Application will specify:
Amount of the security
Date by which Claimant must provide it,
The form it must take
There is no provision in CPR 25.12 for the claimant to make an application. However, the court can under CPR
3.1(5) require any party to provide security for a sum if that party has, without good reason, failed to comply with
a rule.
Grounds 1. The Claimant is based outside the UK and the EU:
CPR 25.13 (2)(a) – therefore claim cannot be enforced against him as it will be difficult to successfully enforce
award of costs (Brussels Convention
2. Impecuniosity (financial situation)
CPR 25.13(2)(c) – if the client is a company, and there is reason to believe it will be unable to pay the
defendant’s costs e.g. involving consideration of the company’s available assets and the nature and liquidity of
these. Evidence the company is in liquidation will make out this ground (Northampton Coal Company v Midland
Wagon Company)
3. Evasive Claimant:
Claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs
against him - CPR 25.13(2)(g) for example dissipation of assets, transfer overseas to places unknown to the
defendant (analogous to Claimant’s right to apply for a freezing injunction against the defendant).
Claimant changed address since commencement of claim to evade consequences of litigation - CPR 25.13(2)
(d)
Claimant failing to give address on claim form or giving incorrect address - CPR 25.13(2)(e)
4. The Nominal Claimant
A claimant who is acting as a nominal claimant (i.e. he is suing for the benefit of some other person) and there is
reason to believe that he will be unable to pay the defendant’s costs if ordered to do so - CPR 25.13(2)(f)
5. Other specific statutory provisions
e.g. related to applications challenging an arbitration award of appeal on a point of law
Factors In the event that one of the above grounds apply, the court will only make an order if it is satisfied that it is just,
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