May it please the court, My name is Ms _____ and
I appear on behalf of the Claimant to request that summary judgement under CPR
24.2 is granted against the Defendant for delivery up of the three rings and
judgement for the £805.73. In the alternative, where the application for summary
judgement is rejected, I request for an interim order for delivery up of the rings is
granted.
Mr Learned friend, Mr John Smith appears on behalf of the Defendant in this matter.
Can I just check Judge, have you received the bundle?
Have you had a chance to consider them?
- I am grateful.
Would you like a summary of the facts?
May I dispense with full case citations?
- Much Obliged.
Judge I will be referring to the documents listed under the evidence heading (Para 2
SA)
In terms of my structure, I will first set out the law (PARA 9 TO 11 SA) and will then
move on to my submissions.
I aim to make a total of 3 submissions.
First: D has no real prospect of successfully defending the claim and there is no
other compelling reason why the case or issue should be disposed of at a trial.
Second: Damages are not an adequate remedy
Third: If the application for summary judgement is rejected, I request an interim
order for delivery up of the rings or at the very least, an interim injunction preventing
D from disposing of the rings.
The Law
9. Discretion to grant summary judgment governed by CPR 24.2.
(b) Court may grant summary judgement against the Defendant if it considers that
the Defendant has no real prospect of successful defending the claim or issue and
there is no other compelling reason why the case or issue should be disposed of at a
trial.
10. I aim to refer to the Torts (Interference with Goods) Act 1977, in particular,
(a) Section 3(2)(a) - An order for delivery of the goods, and for payment of any
consequential damages or,
, (b) Section 3(2)(b) - An order for delivery of the goods, but giving the defendant the
alternative of paying damages by reference to the value of the goods, together in
either alternative with payment of any consequential damages.
(c) Section 4(2), CPR25.1(e)
On the application of any person in accordance with rules of court, the High
Court shall, in such circumstances as may be specified in the rules, have
power to make an order providing for the delivery up of any goods which are
or may become the subject matter of subsequent proceedings in the court, or
as to which any question may arise in proceedings.
11. Finally, I refer to the case of Blue Sky One Ltd v Mahan Air [2009] EWHC 3314
(QB) at [309] (‘Blue Sky One’)
Judge, if you have no preliminary questions for me, may I proceed with my first
submission?
Much obliged.
FIRST: I submit that the Defendant has no real prospect of successfully
defending the claim and there is no reason why and there is no other compelling
reason why the case or issue should be disposed of at a trial.
12. As per the case of Swain v Hillman, the court must consider whether C has a
“realistic” as opposed to “fanciful” prospect of success.
13. As per ED & F Man Liquid Products v Patel - A “realistic” claim is one that carries
some degree of conviction. It must be more than merely arguable.
14. PARA 14 - I set out the reasons why the rings nor the cash were gifts from Mr
Bradshaw to D.
(a) First Point at PARA 14(a) (SA) > AT > PG. 30, Para 7 D’s WS - D claims that
Mr Bradshaw placed the diamond solitaire ring on her finger as an
I appear on behalf of the Claimant to request that summary judgement under CPR
24.2 is granted against the Defendant for delivery up of the three rings and
judgement for the £805.73. In the alternative, where the application for summary
judgement is rejected, I request for an interim order for delivery up of the rings is
granted.
Mr Learned friend, Mr John Smith appears on behalf of the Defendant in this matter.
Can I just check Judge, have you received the bundle?
Have you had a chance to consider them?
- I am grateful.
Would you like a summary of the facts?
May I dispense with full case citations?
- Much Obliged.
Judge I will be referring to the documents listed under the evidence heading (Para 2
SA)
In terms of my structure, I will first set out the law (PARA 9 TO 11 SA) and will then
move on to my submissions.
I aim to make a total of 3 submissions.
First: D has no real prospect of successfully defending the claim and there is no
other compelling reason why the case or issue should be disposed of at a trial.
Second: Damages are not an adequate remedy
Third: If the application for summary judgement is rejected, I request an interim
order for delivery up of the rings or at the very least, an interim injunction preventing
D from disposing of the rings.
The Law
9. Discretion to grant summary judgment governed by CPR 24.2.
(b) Court may grant summary judgement against the Defendant if it considers that
the Defendant has no real prospect of successful defending the claim or issue and
there is no other compelling reason why the case or issue should be disposed of at a
trial.
10. I aim to refer to the Torts (Interference with Goods) Act 1977, in particular,
(a) Section 3(2)(a) - An order for delivery of the goods, and for payment of any
consequential damages or,
, (b) Section 3(2)(b) - An order for delivery of the goods, but giving the defendant the
alternative of paying damages by reference to the value of the goods, together in
either alternative with payment of any consequential damages.
(c) Section 4(2), CPR25.1(e)
On the application of any person in accordance with rules of court, the High
Court shall, in such circumstances as may be specified in the rules, have
power to make an order providing for the delivery up of any goods which are
or may become the subject matter of subsequent proceedings in the court, or
as to which any question may arise in proceedings.
11. Finally, I refer to the case of Blue Sky One Ltd v Mahan Air [2009] EWHC 3314
(QB) at [309] (‘Blue Sky One’)
Judge, if you have no preliminary questions for me, may I proceed with my first
submission?
Much obliged.
FIRST: I submit that the Defendant has no real prospect of successfully
defending the claim and there is no reason why and there is no other compelling
reason why the case or issue should be disposed of at a trial.
12. As per the case of Swain v Hillman, the court must consider whether C has a
“realistic” as opposed to “fanciful” prospect of success.
13. As per ED & F Man Liquid Products v Patel - A “realistic” claim is one that carries
some degree of conviction. It must be more than merely arguable.
14. PARA 14 - I set out the reasons why the rings nor the cash were gifts from Mr
Bradshaw to D.
(a) First Point at PARA 14(a) (SA) > AT > PG. 30, Para 7 D’s WS - D claims that
Mr Bradshaw placed the diamond solitaire ring on her finger as an
