15. Interim Applications

Question 1

Where should an application be made to?

Answer 1

General rule that applies where a claim has been started: to the court or County Court hearing centre where the claim was started

Exceptions:

(1) if the claim has been transferred to another court/hearing centre, the application should be made there unless there is good reason to make it to a different court

(2) If the parties have been notified of a fixed date for the trial, application must be made to the court where the trial is to take place

Rule where the claim has not yet been started: make the application to the court where the claim is likely to be started, unless there is good reason to make the application to a different court (n.b. an app made in the County Court before the claim has started can be made at any County Court hearing centre, unless any rule provides otherwise)

N.B. unsurprisingly where enforcement proceedings have been begun, applications in these proceedings must also be brought in the court that is dealing with the enforcement proceedings

N.B. where a claim is started in the County Court Money Claims Centre, an application made after a claim has been started must be made to the County Court Money Claims Centre or County Court hearing centre where the claim is being dealt with. In these cases, a district judge can either consider the application without a hearing or direct that it be transferred to a County Court hearing centre.

Question 2

Where an interim application must be made by a certain time, when is it treated as having been made ?

Answer 2

At the time when the application notice is received by the court

Question 3

What must an interim application notice include?

Answer 3

The application notice must state-

(1) what order the applicant is seeking; and
(2) briefly, why the applicant is seeking that order.

Question 4

What must accompany a copy of the application notice when it is served?

Answer 4

(1) A copy of any written evidence in support; and
(2) A copy of any draft order which the applicant has attached to his application

Question 5

What must an applicant file in addition to the application notice, if the copy of the notice is to be served by the court?

Answer 5

Any written evidence in support

My comment: As this will have to be served with the copy, it’s the applicants job to give it to the court so the court can serve it

Question 6

If an application notice has been served too late, what can the court do?

Answer 6

Direct that sufficient notice has, in the circumstances, been given.

Question 7

What is the general rule about application notices for interim applications? What are the exceptions to the general rule?

Answer 7

General rule: an application notice must be filed and served on each respondent to make an interim application

Exceptions: no application notice is required/there is no need to serve such a notice if
(1) this is permitted by a rule or PD; or
(2) the court dispenses with the requirement for an application notice/service

These exceptions are the only ones listed in r 23.4 but PD23A adds additional ones: (1) where there is exceptional urgency
(2) where the overriding objective is best furthered by doing so
(3) by consent of all parties
(4) with the permission of the court
(5) where a court order, PD or rule permits it

Question 8

When can the court deal with an interim application without a hearing?

Answer 8

Where:

(1) the parties agree as to the terms of the order sought
(2) the parties agree that the court should dispose of the application without a hearing; or
(3) the court does not consider that a hearing would be appropriate.

Question 9

Where the court has made an order granting or dismissing an interim application without serving a copy of the application notice, what must the applicant do?

Answer 9

The respondent must serve a copy of the application notice, any evidence in support of it and the order of the court on any party or other person -
(1) against whom the order was made; and
(2) against whom the order was sought

The order must contain a statement of the right to make an application to set aside or vary the order.

N.B. the court can direct that the respondent does not have to do this

Question 10

Can a person apply to have an interim order set aside or varied?

Answer 10

Yes if they were not served with a copy of the application notice before an order was made.

Question 11

When must a party apply to have an interim order set aside or varied?

Answer 11

Within 7 days after the date on which the order was served on the person making the application.

Question 12

If a party (an applicant or a respondent) fails to attend the hearing of an application for an interim order can the court proceed in their absence?

Answer 12

Yes

Question 13

If a party fails to attend a hearing for an interim order and the court makes an order at the hearing, what can the court do?

Answer 13

The court may on application or of its own initiative, re-list the application.

Question 14

What must the court do if it dismisses an application for an interim order, deeming it to be completely without merit?

Answer 14

(1) The court’s order must record that fact; and
(2) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 15

In what circumstances may an application be made without serving an application notice according to PD23A?

Answer 15

only-

(1) where there is exceptional urgency
(2) where the overriding objective is best furthered by doing so
(3) by consent of all parties
(4) with the permission of the court
(5) where a court order, PD or rule permits it

N.B. This recites r 23.4 (which is on a previous flashcard) and adds further circumstances

Question 16

Which hearings will be conducted by telephone (unless the court orders otherwise)?

Answer 16

(1) allocation hearings;
(2) listing hearings;
(3) interim applications, case management conferences and pre-trial review with a time estimate of no more than 1 hour.

Question 17

What must the parties do if they wish to use video conferencing facilities?

Answer 17

If those facilities are available in the relevant court, the parties should apply to the Master or District Judge for directions.

Question 18

What are the formal requirements of an application notice?

Answer 18

It must be signed and include:

(1) the title of the claim;
(2) the reference number of the claim;
(3) the full name of the applicant,
(4) if the applicant is not already a party, the address for service,
(5) a request for a hearing or a request that the application be dealt with without a hearing

Question 19

What will the court do if the applicant requests that the application will be (i) dealt with at a hearing or (ii) without a hearing?

Answer 19

Request for a hearing –> court will notify the applicant of the time and date for the hearing

Request for decision without hearing –> court will send the application to a Master or District Judge so that they may decide whether it is suitable for consideration without a hearing. If they decide that it is, the court will so inform the applicant and the respondent and give directions for the filing of evidence. If they decide that it is not, the court will inform the applicant + respondent of the time, place + date of the hearing and may also give directions for the filing of evidence.

–> N.B. if the application is intended to be made to a judge, it must say so. In that case, it won’t be sent to a Master/District Judge but rather to a judge

Question 20

When should an application be made?

Answer 20

• As soon as it becomes apparent that it is necessary or desirable to make it.
• Wherever possible they should be made so that they can be considered at any other hearing for which a date has already been fixed or for which a date is about to be fixed

Question 21

What should a party do if a date for a hearing has been fixed and they wish to make an application at that hearing but they do not have sufficient time to serve an application notice?

Answer 21

Should inform the other party and the court (if possible in writing) asap of the nature of the application and the reason for it - then make the application orally at the hearing

No need to do this if the circumstances of the application require secrecy

Question 22

When must the application notice be served (assuming it must be served)?

Answer 22

• In general –> as soon as is practicable after it has been issued
• If there is to be a hearing –> at least 3 days before the hearing date
• If the hearing is to take place over the telephone –> at least 5 days before the date of the hearing.

Question 23

What are the rules regarding evidence to support/reply to an application?

Answer 23

• As we’ve seen throughout, generally speaking applications need to be supported by evidence.
• Even where this is not expressly required by the CPR, applications that are not supported by evidence are - as a practical matter - unlikely to be successful
• The court can give directions for the filing of evidence of its own initiative, including specifying the form that it is to take and when it is to be served
• Parties can, in general, rely on evidence that has already been in served in support of/response to an application. If they want to rely on evidence that has not yet been served, it must be served with the application or asap (in the case of the respondent).
• Evidence must be both filed with the court and served on the parties

Question 24

Can the contents of an application notice be used as evidence?

Answer 24

Yes, if they are verified by a statement of truth

Question 25

What should an applicant bring to a hearing for an interim application?

Answer 25

Except in the most simple cases - a draft of the order sought (ideally provide an electronic copy of it)

Question 26

What interim remedies can the court grant?

Answer 26

This is just a selection - full list at CPR 25.1

(1) interim injunctions
(2) interim declarations
(3) an order relating to property (e.g. detention, custody, preservation or sale of property)
(4) an order allowing a person to enter land in the possession of a party to the proceedings for the purposes of carrying out an order under (3)
(5) An order to deliver up goods
(6) freezing injunctions
ETC

Question 27

When can an order for an interim remedy be made?

Answer 27

It can be made at any time including-

(a) before proceedings are started; and
(b) after judgment has been given

Unless another rule provides otherwise.

Question 28

In what circumstances may a court grant an interim remedy before a claim has been made?

Answer 28

Only if:
(a) the matter is urgent; or
(b) it is otherwise desirable to do so in the interests of justice

Question 29

At what point can a defendant apply for an interim remedy?

Answer 29

Unless the court orders otherwise - only once he has filed either an acknowledgement of service or a defence (i.e. the power of the court to grant these orders even before proceedings have started is limited to prospective claimants)

Question 30

What should a court do if it grants an interim remedy before a claim has been commenced?

Answer 30

Give directions requiring a claim to be commenced - unless the the interim remedy is an order for pre-action disclosure or inspection of documents

Question 31

Can a court grant an interim remedy on an application made without notice?

Answer 31

Yes - if it appears to the court that there are good reasons for not giving notice. Applications for interim remedies are an exception to the general rule that a copy of the application notice must be served on each respondent.

BUT, given the widespread use of mobile devices it is very unusual for there to be a good reason not to give at least informal notice. Generally speaking, the only times there will be such a reason is where giving notice would defeat the purpose of the application (e.g. freezing injunctions) or extreme time pressure (but again, sending a text is usually possible).

If the application is made without giving notice reasons must be provided in the application as to why notice has not be given.

Question 32

Does an application for an interim remedy have to be supported by evidence?

Answer 32

Yes

Question 33

When might it be particularly sensible to hold a hearing for an interim application in private (despite the general requirement that hearings should be held in public)?

Answer 33

Where:

• Publicity would defeat the object of the hearing
• It is a hearing without notice and it would be unjust to any respondent for there to be a public hearing
• That the hearing involves confidential information and publicity would damage that confidentiality

Question 34

Describe what should be done where one is applying for an urgent interim injunction that is being dealt with at a court hearing without notice?

Answer 34

Where a claim form has already been issued:

• The application notice, evidence in support and a draft order should be filed with the court 2 hours before the hearing wherever possible
• If the application is made before the application notice has been issued, a draft order should be provided at the hearing, and the application notice and evidence in support must be filed with the court on the same day or next working day or as ordered by the court, and
• Except where secrecy is essential, the applicant should take steps to notify the respondent informally of the application

Where the claim form has NOT yet been issued:

• All the rules above apply, in addition the following points also apply:
• Unless the court orders otherwise, either the applicant must undertake to the court to issue a claim form immediately or the court will give directions for the commencement of the claim
• Where possible the claim form should be served with the order for the injunction
• The order should state in the title after the names of the applicant and the respondent “the Claimant and Defendant in an Intended Action”

Question 35

What can an applicant do if it is not possible to arrange a hearing for an interim injunction because the application is extremely urgent?

Answer 35

• Call the relevant court and ask if a judge is available to deal with the emergency application
• It is likely that the judge will require a draft order to be supplied by electronic means to them
• This is only possible if the applicant is acting by counsel or solicitors

Question 36

What must an order for an injunction contain (unless the court orders otherwise)?

Answer 36

(1) An undertaking by the applicant to the court to pay any damages which the respondent sustains which the court considers the applicant should pay,
(2) If made without notice, an undertaking to the court to serve on the respondent the application notice, evidence in support and any order made as soon as practicable
(3) If made without notice, a return date for a further hearing at which the other party can be present
(4) If made before filing the application notice, an undertaking to file and pay the appropriate fee on the same or next working day, and
(5) If made before issue of the claim form: (i) an undertaking to issue and pay the appropriate fee on the same or next working day, or (ii) directions for the commencement of the claim

Question 37

Is the respondent the only person who can be paid damages for losses incurred as a result of an injunction?

Answer 37

No - the court (when making such an order) is also required to consider whether it should require an undertaking by the applicant to pay any damages sustained by a person other than the respondent, including another party to the proceedings or any other person who may suffer loss as a consequence of the order. But n.b. it will not automatically require an undertaking that is wider than just the respondent’s losses - there need to be ‘appropriate circumstances’ justifying this

Question 38

Describe an applicant’s duty of disclosure in cases in which they make an application without notice.

Answer 38

• Must make full and frank disclosure of any fact that might affect the judge’s decision, including of those matters that might be adverse to the applicant
• The point of this duty is to minimise the risk of errors in cases in which the other side has not had an opportunity to make representations
• The obligation is owed to the court itself
• Sanction by which the duty is enforced: court’s ability to set its own orders aside and refuse to renew them - the court strongly errs towards doing this if there has been any breach of this duty
• The duty does not cease on the making of the order - the applicant continues to be under a duty to inform the court of any developments that might affect its decision to allow the order to continue
• Applicant must show the utmost good faith
• Important to actively point out important issues - not good enough to provide the judge with the relevant info, somewhere in the evidence

Question 39

Describe the applicant’s duty of disclosure where an application is made on short notice.

Answer 39

I.e. cases where the court has said that sufficient notice has been given in the circumstances even though the respondent was not given 3 days pre-hearing

• The duty is pretty much the same as in ‘no notice’ cases
• The thinking behind this is that the respondent won’t have had enough time to prepare - even if they show up and make submissions
• But really just take a common sense approach: the important thing is that the court has all the relevant info. None of this is about sticking to any formal requirements.

Question 40

What is the consequence of an applicant breaching their duty to make full and frank disclosure where the application is on short notice or without notice?

Answer 40

• It can discharge orders it has made where the duty has been breached
• It can (and sometimes does) do this even where upon a full enquiry it turns out that the order should have been made
• The point here is not to achieve the correct outcome, but to deter people from breaking the duty and to deprive the applicant of an advantage improperly obtained (procedurally - even if substantively it’s fine)
• In deciding on the consequence the court must take into account all the circumstances
• If the breach was deliberate, it would be very rare for the court not to discharge the order
• Important to remember that it can sometimes be difficult to determine what is and what isn’t material and also that these kinds of applications often have to be prepared quickly
• Ultimately the court needs to balance the interests of protecting the applicant (who breached the duty) with those of the respondent and ensure that neither party can abuse any of the processes

Question 41

Are interim injunctions without notice routinely granted?

Answer 41

No - they are an exceptional remedy