Civil Litigation Notes and Mind maps - Very Competent - Outstanding
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If Ct DOES make order for security of costs it will: 13.2 SECURITY FOR COSTS cT orders party to pay money into court if party has without reason failed to
1. Determine amount of security AND comply with a rule,pd or pre-action p - made by DEFENDANT
2. Direct the manner & time security must be given PROCEDURE (pt23)
Aim: protect the party in whose favour it is made against the risk of being
unable to enforce costs order the may later obtain. Overall, an order for
1. Written evidence in support MUST address: security for costs is a valuable tool for defendants who are concerned about
Ground for order the financial risks of litigation, particularly where the plaintiff may be unable
Condition (below) or specific enactment relied on to pay costs if they lose the case.
1. It is JUST to make an order amount of security sought
costs already incurred by A/D; estimate likely figure
2. One or more of conditions in ss(2) applies OR an enactment
One of the main considerations is whether permits court to make an order
the applicant (referred to as "C") is able to
2. Ct MAY (discretion) ONLY make an order when ss(2) Conditions:
provide the requested security. If C is
satisfied, in all the circumstances condition 1 & 2 are
unable to raise the funds required, then
met
ordering them to do so may breach Article
A. C (whether company or individual) resident
6, which guarantees the right to a fair trial.
OUT OF JURISDICTION, but not resident in:
In such cases, C may need to provide a. A Brussels contracting site - inc. EU, Aus & NZ
evidence that they cannot provide security b. A state bound by Lugano Convention -
without relying on family or friends. largely EU - some Scandinavian etc.
c. A state bound by 2005 Hague Convention or
Regulation State - defined 1(3) Civil Jurisdiction
However, if C is insured, then this may be & Judgments Act
considered adequate protection for the C. C is acting as a
respondent (referred to as "D"), and the 2. C is a COMPANY or other body and there are reasons to believe it will (not may) be UNABLE to pay nominal claimant (suing
order for security may be refused. Ds costs if ordered to
for benefit of someone
lower test than balance of probabilities; just SOME reasons to believe (even if C adduces evidence
to the contrary) else) and there is reason
The purpose of the security for costs order assessment made at time application is made BUT ct will consider whether future events are likely to believe will be unable
is to protect the respondent from the risk of to occur to pay Ds costs if E. C failed to give
sometimes, ct considers previous history of non-compliance/flouting court orders
being unable to recover their legal costs if ordered dto do address on the
Ct considers nature & liquidity of company's assets/ but liquidation can be rebutted by evidence
they win the case, but the applicant should of C that it has some other way to pay.
D. C has changed CF/gave incorrect
not be prevented from bringing a makes NO provision for applications against an unincorporated association
If C shows it is unable to pay security sought, court MAY order that C pay security in slightly larger address since claim address ( no need
meritorious claim just because they cannot
provide security. If the applicant can
sum than that which C offered to provide. was commenced with for impropriety)
a view to EVADING
demonstrate that their claim is "highly likely Order MAY NOT be made against C if there is a co-c with sufficient assets meet any liability for A's
costs. BOP for sufficiency of co-cs assets on C. the consequences of
to succeed," then they may not be required
if more than 1 C - Ct may order an insolvent C to pay costs, especially if there is a relatively small lititgation
to provide security for costs. overlap between Cs claims.
The court will not order C to provide security for costs if doing so would force them to abandon a
The court should also consider any claim that has a reasonable prospect of success.
The court will assess whether funds can raise funds from directors, shareholders, or other
admissions or offers made by the F. C has taken steps in relation to assets that would
interested persons.
respondent, but evidence of negotiations The court cannot consider whether a shareholder could raise the funds unless there is evidence of
make it difficult to enforce an order for costs
should not be admitted without consent. bad faith, such as intentionally avoiding a pre-existing legal obligation. against him
The court should not reject an application There is no duty on an individual (e.g. liquidator) bringing a claim in the name of an insolvent D must show some steps taken, e.g. dissipation
company to ensure that the company has sufficient assets to pay any costs awarded to D. of assets, assets in 3p name
solely on the grounds that the respondent
D - NOT required to prove steps were taken w/
has the financial means to survive litigation Things Court will consider with a company:
1. Whether claim is bona fide and not a sham intention of defeating enforcement OR that
without an order for security.
2. Whether claim has a reasonably good prospect of success – though not going so far as to whether steps were take during litigation/in
a claim is likely to succeed/consideration of merits contemplation of it - HOWEVER proof of intent is
If the respondent is bringing a counterclaim 3. Whether admission by D that some money is due to C good
on the same issue, the court may refuse a 4. Whether substantial payment into the court/open offer of substantial amount
D DOES HAVE TO PROVE - that the steps taken
5. Where application for security is being used oppressively, to stifle a genuine claim
costs order. However, if the counterclaim will hinder enforcement
6. Whether C’s lack of means has been brought about by conduct of D – such as delay in payment re
and the original claim have independent any work performed just because application may have confidential
validity and each side can establish grounds 7. Whether the application for security is made at a late stage of proceedings information - it is not good enough to persuade the
for security, then the court will usually court that the application should be heard privately.
order security for both sides or neither.
, An order for payment by D for any damage,
13.1 INTERIM PAYMENTS & SECURITY FOR COSTS
debt or other sum - EXCEPT COSTS which ct
may hold D liable to pay (s.35 SCA). THIS is INTERIM PAYMENTS E. Claim where there is MORE
made by CLAIMANT. can make more than 1 AIM: prevent hardship on C in advance of final THAN 1 D & order sought against
application. judgment; avoids pressure on C to settle prematurely. any one or more - following
If D has made interim payment (voluntarily or must be satisfied:
by ct order) - SHALL NOT be disclosed to the 1. If claim went to trial C would
Ct MAY (has discretion) ONLY make order if any
trial judge UNTIL all questions of LIABILITY & get judgment for a
following conditions are met: substantial amount (other
AMOUNT OF MONEY to be awarded have been
decided - UNLESS D AGREES OTHERWISE. than costs) against AT LEAST
1 (ct cant determine which)
AND
A. D has ADMITTED
2. ALL Ds are either (a) insured
PROCEDURE: Part 23 LIABILITY to pay
in respect of claim, (b)Ds
C MAY NOT apply BEFORE end of period for filing AOS - after damages/other sum of
money (i.e. trail to whose liability will be met
should be made as soon as apparent to be C. If claim went to trial C by insurer under s.151 OR (c)
consider quantum
necessary/desirable. WOULD (defo) obtain D that is a public body.
AN (w/evi & draft order) SERVED AT LEAST 14 DAYS pre- judgment for a SUBSTANTIAL
hearing
B. C has OBTAINED
AMOUNT of money (other
R FILE & SERVE written evidence he wants to rely on AT LEAST JUDGMENT against D than costs) against D, whether D. The following is satisfied:
7 DAYS PRE-HEARING for damages/other or not D is the only D. 1. C seeking order for possession of land,
A FILE & SERVE ADDITIONAL written evidence in reply AT sum of money (other (relevant conviction on same whether or not any other order is also
LEAST 3 DAYS PRE-HEARING than costs) to be facts good evidence of sought AND court satisfied that if case
NO ONE to file written evidence already filed OR serve written assessed. definite success). went to trial, D would be able to pay C
evidence already served. money, even if Cs claim for possession
fails, to compensate Ds occupation and
General rule on time limits: if time limit less than 5 days > DO NOT use of land while the claim for
COUNT weekends, count weekends if longer MATTERS COURT CONSIDERS BEFORE MAKING ANY possession was pending
ORDER 2. the court wants to make sure that if the
Ct MUST NOT order more than reasonable claimant gets the order for possession
proportion of likely final judgment but it turns out they weren't entitled to
Additional requirements for supporting evidence Ct MUST consider: Contributory negligence & any it, the defendant won't be left with
(MUST have evidence in support, ws w/ SOT) set-ff or CC. nothing.
Supporting evidence MUST deal with: when making order for interim payment Ct MAY
1. sum of money sought order payment in one sum or instalments
2. items/matters for which interim payment is sought.
money claims need to be tied with specific items Ct power to adjust/vary interim payment & interim ORDER THAT d has mad - WHETHER VOLUNTARILY OR BY CT ORDER
CT can order:
3. sum final judgment likely to be given
1. All or part of interim payments to be repaid - w/ interest in cases of overpayment
4. reason for believe conditions for making order are 2. vary/discharge order for payments;
made out 3. Order DQ to reimburse wholly/partly other D who has made payment, BUT ONLY where 2nd D has made a claim against DQ
5. other relevant matters for contirb/indemnity/order remedy AND where claim to which interim payment related has not been
6. In PI: special damages (details) & pas/future loss discontinued/disposed.
7. Fatal accident: details of person made on behalf of
CT can make these WITHOUT ANY APPLICATION by either party if it makes the order when disposing of the claim or any part of
it.
, Addition/Substitution 8.1 Multiple Causes of Action, CC & Additional Claims when application is made for add/sub on basis of
transfer of interest/liability - App should be supported
Has new C given
by evidence showing stage proceedings have reached
WRITTEN consent that Multiple Parties/COA (Pt19): Adding, removing or substituting a party & what changes have occurred to cause transfer of
can be filed with CT? no limit on no. of c/d joined as party
interest or liability.
if c claims remedy which someone else jointly entitles to - must Where CT makes
be a party to proceedings - UNLESS ct REMOVAL ORDER - C
Once CF SERVED on D - need cts permission to if other party does not agree to be C - MUST be D unless CT must file w/ ct
add/remove/substitute party (unless ct does it (doesn't apply to probate proceedings) amended cf &
themselves) party bringing application usually responsible for costs. amended POC An order for add/rem/sub MUST be served on
Application copy of order must all parties &
be served on every others affected by order (new p)
Application for permission may be made by
party to proceedings
existing p OR whoever wants to be P
Yes AND case Ct may give consequential directions re filing & serving
MUST be filed according to pt23 - file app notice, & any other person
on any new D & on case management. Ct may order
concerns affected.
proposed amended version of soc, reverify
w/SOT
Has LP adding/substituting
Eve
n if
party that amended application to file, within 14 days, an
an amended CF & POC.
signed written consent of new C - MUST be filed
with ct
expired? usually - add/sub new Ct ONLY
yc
on
dit
ion New D - NOT new P UNTIL amended CF served.
no one can be added/sub w/o consent in writing & party after LP
allows this ss
ati
filing consent w/ ct considered as new sfie No order will take effect on new C until consent filed
claim in new d, c
th w/ court.
claim IF: as
App for substitute dis
cre
May be w/o notice & MUST be supported a. LP was current tio
n(
when original oo
w/evidence - setting out new ps interest. )
NO or case proceedings started
concerns AND
b. the addition/sub
removal? is necessary In PI/Fatal accident
ct can exercise
App can be w/o discretion (in
hearing if all Ps interest of
agree C. Removing a party justice) to
if NOT DESIRABLE to disapply LP
when is it
continue to be a
necessary?
party original party died or was
made bankrupt &
interest/liability passed to
B. Substituting party - Ct
new p
A. Adding Party - Ct adds if MAY order substitution if aims to correct a mistake in initial CF
1. Desirable - so ct 1. existing Ps interest of MUST be mistake of name rather than
claim cannot be properly carried
resolves all matters in liability PASSED to new identity
out/maintained on by/against original party
dispute in proceedings AND mere typo but still same person - allowed
if genuine mistake unless new on add/sub as D/C.
OR 2. Desirable to sub so
test: is it possible to identify intended D by must be necessary to maintain existing
2. Desirable - ct resolves matters in dispute can be ref to a description more or less specific to action, not new, even if both actions arise
an issue involving new resolved the particular case? out of same facts
party & existing one test may allow addition of new D
so can be allowed to cure a defect in
which is connected to unconnected to original D - potential
existing.
matters in dispute injustice
o requirement that mistake is reasonable.
, TORT - 6 - date of DAMAGE
BOC - 6 - Date of breach
ENFORCEMENT OF COURT JUDGMENT - 6 - date
judgment became enforceable 2. Limitation
LATENT DAMAGE - 6 from accrual OR if expiring later - 3
from starting date - both subject to long stop 15 time ceases to run
RECOVERY OF INTEREST ON JUDGMENT DEBT - 6 - date
when proceedings
interest due
FATAL ACCIDENT - 3 - date of death OR date of are started & this
knowledge of person for whose benefit claim is brought happens when CF is
PI - 3 - date of injury OR date of knowledge - if dies before issued.
3y - date of death OR date of reps knowledge
CONTRIB NEG - 2 - date on which right to contrib
occurred i.e date liability fixed by judgment (regardless of
appeal
OVERRIDNG TIME LIMIT IN NEG CLAIMS - 15 - even
where damage not yet occurred & not yet knowledge EXTENSION OF LP - DISABILITY
Infant or lacks capacity
disability MUST be pre-existing on date of accrual (rather
than result of accident - which should apply for
DATE OF KNOWLEDGE extension of lp
LP will not run until - cease to be disabled/died
PI & Fatal accidents - date relevant person 1st had knowledge of ALL following: 30 y limit - claims from disabled re land
1. That injury was SIGNIFICANT - reasonable to think it sufficiently serious to justify proceedings DOES NOT apply if disabled claiming via someone else
against D who did not dispute liability & was able to satisfy judgment
2. That injury was ATTRIBUTABLE in whole/part to act or omission alleged to constitute cause of DISCRETIONARY EXCLUSION/DISAPPLICATION OF TL -
action PI/DEATH
3. D's Identity PI/DEATH ONLY
can apply to any cause of action with PI element - inc.
persons knowledge inc. knowledge he reasonably expected to acquire - BOC
1. From facts OBSERVABLE & ASCERTAINABLE to him OR discretion to disapply - if EQUITABLE to allow action to
2. Facts ascertainable to him with help of medial/expert advice proceed having regard to degree which
a. LP (3y or Knowledge) prejudices C
LATENT DAMAGE NEG CLAIMS b. any extension by court would prejudice D
KNOWLEDGE needed to bring action -
1. Of MATERIAL FACTS of damage (reasonable person) - same as SIGNIFICANT (above) Ct have regard to all circumstances -
2. Damage = ATTRIBUTABLE length & reason for delay
3. IDENTITY impact of delay on cogency of evidence
Ds conduct
FRAUD duration of Cs disability after accrual date of cause of
LP will be postponed from running until fraud/mistake/concealment DISCOVERED or could with action
reasonable diligence have been discovered. if C acted promptly & reasonably once knew Ds acts may
Extension of LI - does NOT allow claims against 3P bona fide purchasers for consideration. give rise to cause of action
steps if any taken by C to obtain medical/legal/expert
advice & nature of advice.
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