Chapter 04 Interlocutory, Incidental and Supplemental Proceedings
1. Introduction
Interlocutory, incidental, and
supplemental proceedings are procedures that are used in civil cases to resolve
disputes or to facilitate the progress of the case. These procedures are used
in addition to the main proceedings of the case, which are the pleadings,
discovery, and trial.
The following are some of the most
common interlocutory, incidental, and supplemental proceedings:
·
Commissions: A commission is a process by
which a court appoints a person to investigate a matter and report back to the
court.
·
Settlement of disputes outside Court:
This is a process by which the parties to a dispute agree to resolve their
dispute without going to court.
·
Arrest and attachment before judgment:
This is a process by which a court orders the arrest of a person or the
attachment of property to ensure that the person or property is available to
satisfy a judgment that may be awarded in the case.
·
Security for costs: This is a process by
which a court orders a party to provide security for the costs of the other
party if the party is unsuccessful in the case.
·
Interim injunction: This is a court order
that prohibits a party from doing something or requires a party to do
something.
·
Interlocutory orders: These are orders
that are made by a court during the course of a case to manage the case or to
resolve a particular issue.
·
Receivers: A receiver is a person
appointed by a court to manage the assets of a party to a dispute.
·
Caveat: A caveat is a notice filed with
the court to prevent a party from taking a particular action.
2. Commissions
A commission is a process by which
a court appoints a person to investigate a matter and report back to the court.
The person appointed to conduct the commission is called a commissioner.
Commissions are used in civil
cases to investigate complex or difficult issues. For example, a commission
might be used to investigate the cause of an accident, the value of property,
or the credibility of a witness.
The following are some of the key points about commissions:
·
The court has the power to appoint a commission.
·
The commissioner is appointed by the court and
is usually an expert in the matter being investigated.
·
The commissioner has the power to take evidence,
issue subpoenas, and compel the attendance of witnesses.
·
The commissioner's report is confidential and is
not released to the public until the court orders it to be released.
·
The commissioner's report is not binding on the
court, but the court will usually consider the report when making its decision.
2.1 The Court has the Power to Appoint
a Commission
The court has the power to appoint
a commission to investigate a matter and report back to the court. This power
is derived from the court's inherent powers, which are the powers that the
court has by virtue of its position as a court of law.
The court's power to appoint a
commission is not unlimited. The court must have jurisdiction over the matter
that is being investigated. The court must also have a good reason for
appointing a commission. For example, the court may appoint a commission if the
matter is complex or difficult to investigate, or if the court believes that a
commission is the best way to get a fair and impartial investigation.
The court may appoint a commission
at any stage of a civil case. The court may appoint a commission before the
trial begins, during the trial, or after the trial.
The court will usually appoint a
person who is an expert in the matter being investigated. The commissioner will
have the power to take evidence, issue subpoenas, and compel the attendance of
witnesses. The commissioner's report is confidential and is not released to the
public until the court orders it to be released.
The commissioner's report is not
binding on the court, but the court will usually consider the report when
making its decision.
2.2 An Expert in the Matter being
Investigated.
The commissioner is the person
appointed by the court to conduct the commission. The commissioner is usually
an expert in the matter being investigated. This is because the commissioner
will need to be able to understand the technical aspects of the matter and to
be able to assess the evidence that is presented to them.
The commissioner is appointed by
the court and is usually a neutral party. This means that the commissioner is
not associated with either party to the case. The commissioner is responsible
for conducting a fair and impartial investigation.
The commissioner has the power to
take evidence, issue subpoenas, and compel the attendance of witnesses. The
commissioner's report is confidential and is not released to the public until
the court orders it to be released.
The commissioner's report is not
binding on the court, but the court will usually consider the report when
making its decision.
2.3 Power of the Commissioner
The commissioner has the power to take
evidence in the same way that a court does. This means that the commissioner
can:
·
Take testimony from witnesses
·
Receive documents and other exhibits
·
Order the production of documents
·
Hear expert testimony
The commissioner also has the
power to issue subpoenas. A subpoena is a court order that requires a person to
appear and testify at a hearing. The commissioner can issue subpoenas to compel
the attendance of witnesses, including parties to the case, experts, and other
individuals.
The commissioner can also compel
the attendance of witnesses by issuing a writ of attachment. A writ of
attachment is a court order that allows the sheriff to arrest a person who
fails to comply with a subpoena.
The commissioner's power to take
evidence and issue subpoenas is important because it allows the commissioner to
gather the information that they need to conduct a fair and impartial
investigation.
2.4 The Commissioner's Report
The commissioner's report is confidential
because it is intended to be a tool for the court to use in making its
decision. The report contains information that may be sensitive or
confidential, and the court does not want this information to be released to
the public before the court has had a chance to consider it.
The commissioner's report is not
binding on the court. This means that the court is not obligated to follow the
recommendations of the commissioner. However, the court will usually consider
the report when making its decision. The court will weigh the evidence and
arguments presented in the report and decide whether to follow the
recommendations.
3. Settlement of disputes outside Court
A settlement is an agreement
between the parties to a dispute that resolves the dispute without going to
court. Settlements can be reached at any stage of a dispute, from before a
lawsuit is filed to after a trial has begun.
There are many benefits to
settling a dispute outside of court. Settlements can be quicker and less
expensive than litigation. They can also be more confidential, as the terms of
the settlement are not made public. Additionally, settlements can allow the
parties to maintain a good relationship, which may be important if they have to
work together in the future.
The following are some of the most common methods of
settling disputes outside of court:
·
Negotiation: This is the most common
method of settlement. The parties to the dispute negotiate directly with each
other to reach an agreement.
·
Mediation: This is a process in which a
neutral third party, called a mediator, helps the parties to reach an
agreement. The mediator does not make decisions for the parties, but they
facilitate the negotiation process.
·
Arbitration: This is a process in which
the parties agree to submit their dispute to a neutral third party, called an
arbitrator, for a binding decision.
3.1 Negotiation
Negotiation is the most common
method of settlement because it is a flexible and informal process. The parties
to the dispute can control the process and the outcome. Negotiation can be
conducted at any time and in any location.
There are a few key things to keep in mind when negotiating
a settlement:
- Be prepared: Before you start negotiating, it
is important to be prepared. This means knowing your legal rights and the
strengths and weaknesses of your case. It also means knowing what you are
willing to accept as a settlement.
- Be flexible: Negotiation is a process of give
and take. Be willing to compromise and to consider the other party's point
of view.
- Be professional: Negotiation should be
conducted in a professional manner. Avoid personal attacks and focus on
the issues.
- Be willing to walk away: If you are not able
to reach an agreement that is satisfactory to you, be willing to walk away
from the negotiation.
Negotiation can be a challenging
process, but it can be a rewarding one. If you are able to reach a settlement,
you can avoid the time, expense, and uncertainty of litigation.
3.2 Mediation:
Mediation is a process in which a
neutral third party, called a mediator, helps the parties to reach an
agreement. The mediator does not make decisions for the parties, but they
facilitate the negotiation process. The mediator helps the parties to
communicate effectively, to understand each other's positions, and to find common
ground.
Mediation is a voluntary process.
The parties must agree to participate in mediation before it can begin.
Mediation is also confidential. The mediator cannot disclose anything that is
said in mediation without the permission of the parties.
Mediation is a flexible process.
The mediator can tailor the process to the specific needs of the parties.
Mediation can be conducted in person, by telephone, or by videoconference.
Mediation is a cost-effective way
to resolve disputes. The cost of mediation is usually much less than the cost
of litigation.
Mediation is a faster way to
resolve disputes than litigation. Mediation can often be completed in a few
weeks or months, while litigation can take years.
Mediation can help to preserve
relationships. Mediation can help the parties to reach an agreement that is
mutually beneficial, which can help to preserve the relationship between the
parties.
If you are involved in a dispute,
mediation is a viable option to consider. Mediation can be a quicker, more
efficient, and less expensive way to resolve a dispute than litigation.
3.3 Arbitration:
Arbitration is a process in which
the parties to a dispute agree to submit their dispute to a neutral third
party, called an arbitrator, for a binding decision. The arbitrator is
typically a retired judge or an attorney with experience in the type of dispute
that is being arbitrated.
Arbitration is similar to
litigation in that the parties present evidence and arguments to the
arbitrator. However, the arbitrator has the power to make a binding decision,
which is final and cannot be appealed.
There are many benefits to
arbitration. It is a quicker and less expensive way to resolve a dispute than
litigation. It is also more confidential, as the proceedings are not public.
Additionally, arbitration can allow the parties to maintain a good
relationship, which may be important if they have to work together in the
future.
There are also some drawbacks to
arbitration. The arbitrator may not be as impartial as a judge, and the
arbitrator's decision may not be as fair as a jury's verdict. Additionally,
arbitration can be expensive, especially if the dispute is complex or involves
a lot of evidence.
4. Arrest and Attachment before Judgment, Security
for Costs
Arrest and attachment are two legal
procedures that can be used to secure a judgment in a civil case. Arrest is the
physical detention of a person, while attachment is the seizure of property.
Security for costs is a procedure
that can be used to ensure that the winning party in a civil case is paid their
costs.
These procedures can be used in the following situations:
·
When the defendant is likely to abscond or
otherwise avoid paying the judgment.
·
When the defendant has assets that are likely to
be dissipated before the judgment is made.
·
When the defendant is a company or other entity
that is likely to go bankrupt.
The following are some of the key
points about arrest and attachment before judgment:
·
Arrest and attachment are discretionary
procedures. The court will not order arrest or attachment unless it is
satisfied that there is a good reason to do so.
·
The court will consider the following factors when
deciding whether to order arrest or attachment:
·
The likelihood that the defendant will abscond
or otherwise avoid paying the judgment.
·
The value of the assets that are likely to be
seized.
·
The impact of arrest or attachment on the
defendant's business or livelihood.
·
Arrest and attachment can be appealed to a
higher court.
4.1 Arrest and Attachment before Judgment
Arrest
before judgment is a legal process that allows a creditor to have a
debtor arrested and detained until the debt is paid. This is a drastic measure
that is only used in limited circumstances, such as when the debtor is likely
to abscond or otherwise avoid paying the debt.
To obtain an arrest warrant, the
creditor must file a complaint with the court and show that the debtor owes a
debt and is likely to flee. The court will then issue an arrest warrant, which
allows the creditor to have the debtor arrested by the police.
The debtor can be released from
jail if they post bail, which is a sum of money that is paid to the court as a
guarantee that the debtor will appear for their court hearing. If the debtor
fails to appear for their court hearing, the bail money will be forfeited.
Attachment
before judgment is a legal process that allows a creditor to seize the
debtor's property before the debt is paid. This is a less drastic measure than
arrest, but it can still have a significant impact on the debtor's financial
affairs.
To obtain an attachment order, the creditor
must file a complaint with the court and show that the debtor owes a debt and
that there is a risk that the debtor will dispose of their property before the
debt is paid. The court will then issue an attachment order, which allows the
creditor to seize the debtor's property.
The property that can be seized
under an attachment order varies from jurisdiction to jurisdiction. However, it
typically includes the debtor's assets, such as cars, houses, and bank
accounts.
The debtor can challenge the attachment
order by filing a motion with the court. The court will then hold a hearing to
determine whether the attachment order should be dissolved.
Arrest and attachment before
judgment are powerful legal tools that can be used to secure a judgment in a
civil case. However, they should be used with caution, as they can have a
significant impact on the debtor's personal and financial affairs.
4.2 Security for Costs
Security
for costs is a legal procedure that can be used to ensure that the
winning party in a civil case is paid their costs. Costs are the expenses
incurred by a party in bringing or defending a lawsuit, such as attorneys'
fees, expert witness fees, and court filing fees.
Security for costs can be ordered
by the court when there is a risk that the winning party will not be able to
recover their costs from the losing party. This may be the case if the losing
party is a judgment debtor, meaning they are unable to pay their debts.
To obtain security for costs, the winning
party must file a motion with the court and show that there is a risk that they
will not be able to recover their costs from the losing party. The court will
then consider the following factors when deciding whether to order security for
costs:
·
The financial resources of the losing party.
·
The likelihood that the losing party will be
able to pay their debts.
·
The complexity of the case.
·
The amount of costs that are likely to be
incurred.
If the court orders security for
costs, the winning party will be required to post a bond with the court. The
bond is a sum of money that is guaranteed by a surety, such as an insurance
company. If the winning party is unable to recover their costs from the losing
party, the surety will be required to pay the costs to the winning party.
Security for costs is a
discretionary procedure. The court will not order security for costs unless it
is satisfied that there is a risk that the winning party will not be able to
recover their costs from the losing party.
5. Interim Injunction
An interim injunction is a court
order that prohibits a party from doing something until the final decision of
the court is made. Interim injunctions are typically granted in urgent cases
where there is a risk of irreparable harm if the injunction is not granted.
The following are some of the key
points about interim injunctions:
·
Interim injunctions are discretionary. The court
will not grant an interim injunction unless it is satisfied that the applicant
has a good case and that the balance of convenience favors granting the
injunction.
·
The court will consider the following factors
when deciding whether to grant an interim injunction:
·
The likelihood that the applicant will succeed
at trial.
·
The potential harm to the applicant if the
injunction is not granted.
·
The potential harm to the respondent if the
injunction is granted.
·
The public interest.
·
Interim injunctions are temporary. They are
typically granted for a short period of time, such as a few weeks or months,
until the final decision of the court is made.
·
Interim injunctions can be appealed to a higher
court.
6. Interlocutory orders
An interlocutory order is a court order that is
made during the course of a lawsuit, but is not the final decision of the
court. Interlocutory orders are typically made to manage the litigation process
or to protect the rights of the parties until the final decision is made.
The following are some of the key points about
interlocutory orders:
·
Interlocutory orders are discretionary. The court will not make
an interlocutory order unless it is necessary to do so in order to manage the
litigation process or to protect the rights of the parties.
·
The court will consider the following factors when deciding
whether to make an interlocutory order:
·
The likelihood that the order will be effective in achieving its
intended purpose.
·
The potential harm to the parties if the order is not made.
·
The public interest.
·
Interlocutory orders can be appealed to a higher court.
7. Receivers
A receiver is a person appointed
by a court to take control of the property or business of another person or
entity. Receivers are typically appointed in cases where the person or entity
is unable to manage their own affairs, such as when they are insolvent or when
they have been accused of wrongdoing.
·
Receivers are appointed by the court, and they
have the power to take control of the property or business of the person or
entity that they are appointed to oversee.
·
Receivers are responsible for managing the property
or business in the best interests of all stakeholders, such as creditors,
employees, and shareholders.
·
Receivers are required to report to the court on
a regular basis, and they are accountable for their actions to the court.
·
Receiverships can be terminated by the court, or
by the receiver themselves.
7.1
Receivers are Appointed by the Court
This means that the
court has the ultimate authority over the receiver and their actions. The court
can appoint a receiver for a variety of reasons, such as:
·
When a person or entity is insolvent and unable
to pay their debts.
·
When a person or entity has been accused of
wrongdoing, such as fraud or embezzlement.
·
When a person or entity is unable to manage
their own affairs, such as due to mental illness or addiction.
Receivers have the power to
take control of the property or business of the person or entity that they are
appointed to oversee. This means that the receiver can sell the
property, manage the business, or take other actions that they believe are in
the best interests of the creditors, employees, and shareholders.
The power of a receiver is broad
and can vary depending on the jurisdiction. However, in general, receivers have
the power to:
·
Take possession of the property or business.
·
Sell the property or business.
·
Operate the business.
·
Pay the creditors.
·
Retain professionals, such as lawyers and
accountants.
·
Take any other actions that they believe are
necessary to protect the interests of the creditors, employees, and
shareholders.
Receivers are accountable to the
court for their actions. This means that they must report to the court on a
regular basis and they must obtain the court's approval for any major decisions
that they make.
Receiverships can be a costly and
time-consuming process. However, they can be a necessary tool to protect the
interests of creditors, employees, and shareholders in cases where a person or
entity is unable to manage their own affairs.
7.2 Receivers are Responsible for Managing Property
or Business
Receivers are responsible for
managing the property or business in the best interests of all stakeholders,
such as creditors, employees, and shareholders. This means that the receiver
must take into account the interests of all of these groups when making
decisions about the property or business.
The creditors are the people or
entities who are owed money by the person or entity that the receiver has been
appointed to oversee. The employees are the people who work for the person or
entity. The shareholders are the people who own shares in the person or entity.
The receiver must balance the
interests of all of these groups when making decisions. For example, the
receiver may need to sell the property or business in order to pay the
creditors. However, the receiver must also consider the impact that the sale
will have on the employees and shareholders.
The receiver must also be mindful
of the law when making decisions. The receiver must act in accordance with the
court's orders and the law of the jurisdiction in which they are appointed.
Receivers are a powerful tool that
can be used to protect the interests of creditors, employees, and shareholders.
However, receivers also have a responsibility to act in the best interests of
all stakeholders.
7.3 Receivers Reporting
Receivers are required to report to
the court on a regular basis. This is so that the court can monitor the
receiver's activities and ensure that they are acting in the best interests of
all stakeholders.
The frequency of the reports will
vary depending on the jurisdiction and the circumstances of the receivership.
However, receivers typically have to submit reports to the court every month or
quarter.
The reports typically include the following information:
·
The receiver's activities since the last report.
·
The financial status of the property or
business.
·
The progress that has been made in resolving the
matter.
·
Any challenges or obstacles that the receiver
has encountered.
The receiver is also accountable
for their actions to the court. This means that the court can review the
receiver's reports and take action if they believe that the receiver is not
acting in the best interests of all stakeholders.
The court can also remove the
receiver if they believe that the receiver is not competent or is not acting in
good faith.
Receiverships are a serious matter
and receivers have a responsibility to act in the best interests of all
stakeholders. They must also be accountable for their actions to the court.
7.4 Receiverships Termination
Receiverships can be terminated by
the court, or by the receiver themselves.
The court may terminate a
receivership if it believes that the receiver is no longer necessary or if the
receiver has not been acting in the best interests of all stakeholders. The
court may also terminate a receivership if the person or entity that the
receiver was appointed to oversee has been able to regain control of their
affairs.
The receiver themselves may also
terminate the receivership if they believe that they are no longer able to
fulfill their duties or if they believe that the receivership is no longer
necessary.
The termination of a receivership
is a serious matter and the court will carefully consider all of the relevant
factors before making a decision. The court will typically consider the
following factors:
·
The reasons for the termination.
·
The impact of the termination on the creditors,
employees, and shareholders.
·
The likelihood that the receivership will be
terminated again in the future.
The termination of a receivership
can have a significant impact on the creditors, employees, and shareholders.
The court will therefore take steps to minimize the impact of the termination,
such as by appointing a new receiver or by providing financial assistance to
the creditors, employees, and shareholders.
8. Caveat
A caveat is a formal warning or
notice that someone has an interest in a piece of property or land. It is a
Latin word that means "beware." Caveats are typically filed with the
land registry or other relevant authority.
·
Caveats can be filed by anyone who has an
interest in a piece of property, such as a mortgage lender, a tenant, or a
creditor.
·
Caveats can prevent the property from being sold
or transferred without the consent of the person who filed the caveat.
·
Caveats can be removed by the person who filed
them, or by the court.
·
Caveats can be a useful way to protect your
interests in a piece of property.
8.1 Caveats Filing
A caveat is a formal warning or
notice that someone has an interest in a piece of property or land. It is a
Latin word that means "beware." Caveats are typically filed with the
land registry or other relevant authority.
Anyone who has an interest in a piece of property can file a
caveat, such as:
·
A mortgage lender: A mortgage lender has
an interest in the property because they have lent money to the borrower, and
the property is security for the loan.
·
A tenant: A tenant has an interest in the
property because they have a lease agreement with the landlord, and the
property is their home.
·
A creditor: A creditor has an interest in
the property if the borrower owes them money, and the property is security for
the debt.
·
A person who is claiming ownership of the
property: If someone believes that they are the rightful owner of the
property, they can file a caveat to prevent the current owner from selling or
transferring the property.
Caveats can be a useful way to
protect your interests in a piece of property. However, it is important to note
that caveats are not always effective. For example, if the person who is the
subject of the caveat challenges it, the court may decide to remove the caveat.
If you are considering filing a
caveat, it is important to discuss your options and to ensure that you are
complying with the relevant laws.
8.2 Protection of Property
A caveat is a formal warning or
notice that someone has an interest in a piece of property or land. It is a
Latin word that means "beware." Caveats are typically filed with the
land registry or other relevant authority.
Caveats can prevent the property
from being sold or transferred without the consent of the person who filed the
caveat. This is because a caveat gives the person who filed it the right to be
heard before any changes are made to the property.
For example, if a mortgage lender
files a caveat on a property, the property cannot be sold without the lender's
consent. This is because the lender has an interest in the property and they need
to be repaid the money that they lent.
Similarly, if a tenant files a
caveat on a property, the property cannot be sold without the tenant's consent.
This is because the tenant has a lease agreement with the landlord and they
need to be able to continue living in the property.
It is important to note that
caveats are not always effective. For example, if the person who is the subject
of the caveat challenges it, the court may decide to remove the caveat.
If you are considering filing a
caveat, it is important to discuss your options and to ensure that you are
complying with the relevant laws.
8.3 Caveats Removal
A caveat is a formal warning or
notice that someone has an interest in a piece of property or land. It is a
Latin word that means "beware." Caveats are typically filed with the
land registry or other relevant authority.
Caveats can be removed by the
person who filed them, or by the court.
The person who filed the caveat can
remove it by submitting a written request to the land registry or other
relevant authority. The request must be accompanied by the original caveat and
the registration fee.
The court can also remove a caveat
if it is satisfied that the caveat is no longer necessary or that it is being
used to prevent the sale or transfer of the property unreasonably. The court
will typically consider the following factors when deciding whether to remove a
caveat:
·
The reasons for the removal of the caveat.
·
The impact of the removal of the caveat on the
person who filed the caveat.
·
The likelihood that the property will be sold or
transferred without the consent of the person who filed the caveat.
If you are considering removing a
caveat, it is important todiscuss your options.
8.4 Protection of Interests in
property
A caveat is a formal warning or
notice that someone has an interest in a piece of property or land. It is a
Latin word that means "beware." Caveats are typically filed with the
land registry or other relevant authority.
Caveats can be a useful way to
protect your interests in a piece of property in a few ways:
·
They can prevent the property from being sold or
transferred without your consent.
·
They can give you time to take legal action if
your interests are threatened.
·
They can make it more difficult for someone to
sell or transfer the property without your knowledge.
However, it is important to note
that caveats are not always effective. For example, if the person who is the
subject of the caveat challenges it, the court may decide to remove the caveat.
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