10. Interim Applications

Question 1

What is an interim application?

Answer 1

Any application made to the court which requires a judicial decision

Question 2

What is the risk when submitting an application which does not consider the aims of the overriding objective?

Answer 2

The court may make an adverse costs order

Question 3

How soon should an interim application be made?

Answer 3

As soon as it is apparent that it is necessary or desirable

Question 4

What is true of an interim application if there is already another hearing listed in the matter?

Answer 4

It should be raised at that hearing, if possible

Question 5

Unless there is good reason why notice should not be required, what notice of an interim application must be given to parties (1) generally, and (2) if over the telephone?

Answer 5

1. Three days
2. Five days

Question 6

What should be true of evidence relied on in support of an interim injunction?

Answer 6

It should be in writing and filed at court within the relevant time limit

Question 7

For time limit purposes, when is the application treated as having been made?

Answer 7

On the date on which the application notice and fee are received by the court

Question 8

What two things does the applicant have to file and serve on the court within 2 days of the hearing on the interim application?

Answer 8

1. Case summary
2. Proposed draft order

Question 9

When might it be appropriate to not give notice of an interim application?

Answer 9

When giving notice may defeat the purpose of an application, or create an injustice

Question 10

Other than what two types of orders would it be extremely unusual to not give notice of an interim application?

Answer 10

1. Freezing injunction
2. Search order

Question 11

Where an interim application is made without notice, what must it include?

Answer 11

Evidence explaining why notice was not given

Question 12

What three things must be served on the non-applicant party if an order is granted based on
a without-notice application?

Answer 12

1. The order
2. Application notice
3. Supporting evidence

Question 13

If an order is granted based on a without-notice application, within what time limit of being served must the non-applicant party apply to vary or set aside the order?

Answer 13

7 days

Question 14

If a party makes an interim application without notice erroneously, what type of order will the court dismiss it with, and what is the effect of this?

Answer 14

A wasted costs order, which requires the solicitor to pay the other side’s costs to the extent associated with the application

Question 15

What are the two criteria which the applicant must satisfy when applying for summary judgment?

Answer 15

1. Other party has no reasonable prospect of success, and
2. No other compelling reason why the case should proceed

Question 16

What is the difference between default judgment and summary judgment?

Answer 16

Default judgment: Defendant has failed to acknowledge service or file a defence on time, not related to strength of case
Summary judgment: Other party has weak case and there’s no other reason to have the trial

Question 17

What is the difference between an application to strike and summary judgment?

Answer 17

Application to strike: goes to procedure
Summary judgment: goes to merits

Question 18

What are three things for which the court will grant an application to strike?

Answer 18

1. Statement of case discloses no reasonable grounds for bringing/defending claim
2. Statement of case is an abuse of court process
3. Failure to comply with a rule, practice direction, or order

Question 19

What one thing must the claimant do and what one thing must the defendant do before an application for summary judgment is available to the defendant?

Answer 19

Claimant must have served the Particulars of Claim and defendant must served acknowledgement or defence

I.e., the claim must be live before summary judgment is available.

Question 20

What is the defendant excused from doing if the claimant applies for summary judgment following the acknowledgement of the claim?

Answer 20

Defendant does not have to file a defence before the hearing on the application

Question 21

In an application for summary judgment, what are the three time periods before the hearing before which:

(1) Applicant must serve written evidence in support of the application on the other party
(2) Other party must serve evidence in response, and
(3) Applicant must serve any further evidence in response to (2)?

Answer 21

1. 14 days
2. 7 days
3. 3 days

Question 22

What are the three conditions for an order of interim payment to be made?

Answer 22

1. Defendant has admitted liability
2. Claimant has obtained judgment but the sum to be paid is not yet assessed
3. The court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum (and in cases with multiple defendants, from at least one of them and each carries insurance)

Question 23

Before making an application for interim payment, what should the applicant do?

Answer 23

Request that the defendant make a payment voluntarily

Question 24

What must expire before claimant can apply for an interim payment?

Answer 24

The time in which the defendant has to respond to the claim

Question 25

In an application for interim payment, what three things must the claimant’s written evidence contain?

Answer 25

1. Sum of money sought
2. Items and matters in respect of which payment is sought
3. An estimate of the final judgment

Question 26

In an application for interim payment in a personal injury context, what additional thing must be attached to the estimate of final judgment and what one additional thing is required in the claimant’s written evidence?

Answer 26

Estimate of final judgment must contain medical reports.

Additional element is a schedule of loss with details of past and future loss and damage.

Question 27

Does the claimant need to show a specific need for the money in order for an application for interim payment to be successful?

Answer 27

No

Question 28

Whilst the courts will not award an interim payment that is more than a reasonable proportion of the likely final judgment, what % amount has been held to be acceptable?

Answer 28

75%

Question 29

In considering an application for interim payment, will the court consider contributory negligence, set off, counterclaims?

Answer 29

Yes

Question 30

What is an injunction?

Answer 30

A court order that requires a party to do or stop doing something.

Question 31

When is an injunction considered interim, and when is it considered final?

Answer 31

Interim: if made before trial
Final: at trial

Question 32

If an interim injunction is granted based on a without-notice application, only when can a party be penalised for not following it?

Answer 32

After they have notice of the order

Question 33

What are the two types of injunctions, and what do they require?

Answer 33

Mandatory injunction requires someone to take action

Prohibitory injunction prevents someone from taking action

Question 34

In the context of an injunction application, what is an undertaking in damages?

Answer 34

An undertaking by the person making the application that they will compensate the other party for any loss suffered if the court later determines that the injunction should not have been granted

Question 35

How can a party apply to have the injunction discharged?

Answer 35

By applying on notice to a judge of the division where the claim is proceeding

Question 36

What are the three grounds that can be argued in support of an application to discharge an injunction?

Answer 36

1. Applicant did not disclose all information when applying, or did not comply with its terms, or failed to prosecute claim with speed
2. Relief is oppressive, or not justified
3. Material change in circumstances

Question 37

What is a freezing injunction?

Answer 37

A type of prohibitory injunction designed to freeze the assets of the defendant

Question 38

To whom must an application for a freezing injunction be made?

Answer 38

A High Court judge

Question 39

What are the three requirements of which a court must be satisfied before granting a freezing injunction?

Answer 39

1. Strong case on the merits
2. Defendant has assets within the jurisdiction
3. Real risk the defendant may dispose of or dissipate those assets before judgment can be enforced

Question 40

What two things must be true of a freezing injunction?

Answer 40

1. The assets frozen should not exceed the maximum amount of the claim, and
2. The order must state the period of time it will be in effect

Question 41

When will a freezing injunction bind third parties?

Answer 41

When they have knowledge of it

Question 42

What must a defendant offer in order to apply for discharge of a freezing injunction?

Answer 42

Security for the value of the claim

Question 43

What is a search order?

Answer 43

A last resort order applied for without notice by the applicant if it is clear the defendant will not obey the rules relating to disclosure, or may seek to destroy evidence, which allows the claimant to search for and potentially seize this evidence

Question 44

What are the three requirements of which a court must be satisfied before granting a search order?

Answer 44

1. Strong case on the merits of the underlying claim
2. Defendant’s activities cause very serious potential or actual harm to the claimant’s interest, and
3. Clear evidence that the property and documents are in the defendant’s possession and there is a real possibility the material may be destroyed

Question 45

What three things will the independent supervising solicitor who oversees execution of a search order undertake to do?

Answer 45

1. Offer to explain the meaning and effect of the order to the defendant
2. Inform the defendant of their right to seek legal advice and right to apply to vary or discharge the order, and
3. Prepare a written report on execution and provide it to the claimant’s solicitor and the court

Question 46

In the context of a search order, what three things will the claimant’s solicitor undertake to do?

Answer 46

1. Return original documents to the defendant within two days
2. Deliver property in dispute to defendant’s solicitors, and
3. Retain all other property securely until the court directs otherwise