15. Interim Applications Flashcards
What does application notice mean for the purposes of CPR 23?
A document in which the applicant states their intention to seek a court order
What does hearing mean for the purposes of CPR 23?
The occasion on which any interim or final decision is or may be made by a judge at which a person is, or has a right to be, heard in person, telephone, by video, or by any other means which permits simultaneous communication.
What does respondent mean for the purposes of CPR 23?
The person against whom the order is sought and any other such person as the court may direct
What is the general rule about where an application should be made?
The court or county court where the claim was started.
If a claim has been transferred to another court since it was started, an application must be made to the one it has been transferred to, unless there is good reason to do otherwise.
If the parties have been notified of a fixed date for trial, an application must be made to the court to which the trial is to take place.
While having in mind that an application made in the county court before a claim haws started may be made at any county court hearing centre, it must be made to the court where the claim is most likely to be started unless there is good reason to make the application elsewhere
If proceedings to enforce judgment have begun, it must be made to the court or county court hearing centre which is dealing with the enforcement of the judgment.
When is an application “made”?
Where an application must be made within a specified time, it is made in time if the application notice is received by the court within that time.
What applications may be decided without a hearing?
If the parties agree the terms of the order, or the parties agree to dispense with a hearing, or the court does not consider that a hearing would be appropriate.
What is the effect of parties agreeing to the terms of the order?
A party may not without the court’s permission apply to have the order set aside, varied, or stayed
What is the effect of a court deciding the application as it does not consider a hearing would be appropriate?
They may apply to have the order set aside, stayed, or varied within the time limit the court sets, or, if no period given, within 7 days.
The court must give a statement of the right to make this application on the order.
An application to set aside, vary, or stay such an order shall be considered at an oral hearing unless the court decides and states in an order that it is totally without merit. If the court decides this, an application may be made for consideration without oral hearing.
Where a court has disposed of an application permitted to be made without notice, what happens where the court has made an order?
A copy of the application notice and any supporting evidence must be served alongside the order on any party or other person against whom the order was made and sought against, and contain a statement of the right to make an application to set aside or vary the order.
What right does a person whom an order has been made against in a hearing without notice to vary, set aside, or stay that order?
They may apply to vary or set aside the order within 7 days after the date on which the order was served.
What power does the court have to proceed in the absence of a party?
Where the applicant or respondent fails to attend, the court may proceed in their absence
Where the applicant or respondent fails to attend the hearing of an application and the court makes an order, the court may, on application of its own initiative, re-list the application
What must happen when the court dismisses an application as totally without merit?
The court’s order must record that fact and the court must, at the same time, consider whether it is appropriate to make a civil restraint order
When may an application be made without notice?
(a) Where there is exceptional urgency
(b) Where the overriding objective is best furthered by doing so
(c) By consent of all parties
(d) With the permission of the court
(e) Where the applicant is seeking a direction that their address not be provided to a party
(f) Where a date for a hearing has been fixed and a party wishes to make an application but there is not enough time to file or serve an application notice
(g) Where a rule, court order, or PD permits
Where must an application be heard if a claim is started in the CNBC?
An application must be made to the CNBC or hearing centre to which it is allocated.
A district judge may – consider that application without a hearing or direct it should be transferred to a hearing centre
How may a hearing be held?
Either in person, remotely, or partially remotely in accordance with arrangements permitted or required under any enactment
The court will communicate to the parties the arrangements for the hearings. All stakeholders must comply.
Hearings to deal with allocation or listing or with a time estimate of two hours or less may be conducted remotely depending on the normal practice at a particular court
What interim remedies may be granted?
(a) An interim inunction
(b) An interim declaration
(c) An order:
a. For the detention, custody, or preservation of relevant property
b. For the inspection of relevant property
c. For the taking of a sample of relevant property
d. For the carrying out of an experiment on or with relevant property
e. For the sale of relevant property which of a perishable nature or which, for any other good reason, it is desirable to sell quickly; and
f. For the payment of income from relevant property until the claim is decided
(d) An order authorising a person to enter any land or building in possession of a party to the proceedings for the purposes of carrying out an order above in C
(e) An order to deliver up goods
(f) An order:
a. Restraining a party from removing from the jurisdiction assets located there
b. Restraining a party from dealing with any assets whether located within the jurisdiction or not
(g) A order directing a party to prove information about the location of relevant property or assets or to provide information about which are or may be te subject of application for a freezing injunction
(h) An order requiring a party to admit another party for the purpose of preserving evidence
(i) An order for disclosure of documents or inspection of property before a claim has been made
(j) An order for interim payment (except costs)
(k) An order for a specifi3ed fund to be paid into court or otherwise secured in a case where there is a dispute about a party’s right to it
(l) An order permitting a party seeking to recover personal property to pay money into court pending outcome of the proceedings and directing that, if he does so, the property shall be given up to him
(m) An order directing a party to prepare and file accounts relating to the dispute
(n) An order directing any account to be taken or inquiry to be made by the court
(o) And order on the enforcement of intellectual property rights
The fact that a remedy is not listed above does not affect any power the court may have to grant it.
The court may grant an interim remedy whether or not that has been a claim for a final remedy of that kind.
The court can order a party to produce documents at the hearing or on such date as a court may direct
What does relevant property mean for CPR part 25?
Property which is subject to a claim or as to which any question may arise on a claim
When may an interim remedy be made?
At any time, including before proceedings have started and after judgment.
However, this is subject to any rule, PD or enactment which provides otherwise; and
The court may grant an interim remedy only if the matter is urgent or it is otherwise desirable to do so in the interests of justice; and
A defendant may not apply for any of the orders before he has field either an acknowledgement of service or defence, except if a court orders otherwise.
Where a court grants an interim remedy before a claim has been commenced, it should give direction requiring a claim should be commenced (except for an order for disclosure, inspection e.c.t. before a claim)
How does a party apply for an interim remedy?
On an application made without notice if there are good grounds for no notice.
It must be supported by evidence, unless the court orders otherwise
If the applicant makes an application without giving notice, the evidence in support must state the reasons why notice has not been given
May an interim remedy order hearing be in private?
It can be though it generally shouldn’t. The exceptional circumstances that allow for it is where publicity would defeat the object of a hearing; that it is a hearing on an application without notice and it would be unjust for any respondent for there to be a public hearing; that the hearing involved confidential information and publicity would damage that confidentiality.
Each derogation from article 6 must be justified.
For urgent applications and applications without notice where the claim form has already been issued, what are the procedural steps?
Can be dealt with via telephone
The application notice, evidence in support and a draft order should be filed two hours before the hearing wherever possible. If an application is made before the application notice has been issued, a draft order should be provided at the hearing and the notice and evidence in support filed on the same or next working day or as ordered by the court. And, except in cases of secrecy, the applicant should take steps to notify the respondent informally of the application.
For urgent applications and applications without notice where the claim form has not been issued, what are the procedural steps?
The applicant must undertake to the court to issue the claim form immediately or the court will give directions for it=
The claim form should be served wit the order for injunction
An order before issue should state in the title after the names ‘the claimant and defendant in an intended action’
What are the rules for applications made by telephone?
Between 10am and 5pm weekdays by telephoning the RCJ. The county court should be contacted in those proceedings.
Where an application is made outside those hours, the applicant should phone either the RCJ or the Urgent Court Business officer of the appropriate circuit
A judge will likely require a draft order to be supplied by electronic means to them
The application and evidence must be filed on the same or next working day or as ordered, together with copies of the order for sealing
Injunction will be heard by telephone only where the applicant is acting by counsel or solicitors
What are the requirements for orders for injunctions?
Must contain an undertaking by the applicant to the court to pay any damages if the court so orders
If made without notice, an undertaking from the applicant to serve the application notice, evidence in support, and any order made as soon as practicable
If made without notice to any other party a return date for a further hearing at which the other party can be present
If made before filing the application notice, an undertaking to file and pay the appropriate fee the same or next working day
If made before issue:
An undertaking to issue and pay the appropriate fee on the same or next working day or directions for the commencement of the claim
When the court makes an order for an injunction, it should consider whether to require an undertaking by the applicant to pay any damages sustained by a person other than the respondent
Should a party give no notice when there is not enough time to give formal notice of an application?
No, they still should informally inform the other party except where the nature of the circumstances require secrecy
What evidence is required in interim applications?
A party can rely solely on the matters set out in their statement of case or their application provided it is verified by a statement of truth
Must an application notice be filed?
Yes, unless a rule or PD states otherwise or the court dispenses with it
Must notice be given for an application notice?
Yes, unless a rule, PD, or court order permits otherwise
What must an application notice include?
What order the applicant is seeking and why the applicant is seeking the order
How is service of an application notice made?
As soon as practicable after it is filed and at least 34 days before the court is to deal with it unless a rule, PD, or court order states otherwise
If a copy of the notice is to be served by the court, the applicant must file a copy of any supporting written evidence
If an application notice is served but with insufficient notice, the court may direct in the circumstances of the case, sufficient evidence has been given and may hear the application.
What must accompany a copy of an application notice when it is served?
A copy of any supporting written evidence, except where already been filed or where it has already been served.
A copy of any draft order
What must an application notice include?
The title of the claim
Reference of the claim
The full name of the applicant
Their address for service including a post code where ethe applicant is not already a party
Either a request for a hearing or a request for it to be dealt without one
Where it is a hearing requested by the applicant or the court decides to hold a hearing, the court will notify the applicant of the time and date for th hearing and may give direction for the filing of evidence
On receipt of an application with a request for no hearing, the court will consider whether one is required
Where the court decides, the court will inform the applicant and respondent and may give directions for the filing of evidence
Every application should be made so that they can be considered at any hearing for which a date has already been or is about to be fixed by the court
The parties must anticipate that at any hearing the court may wish to review the case progress and so should be ready to answer any questions the court may have.
How and what evidence should accompany an application notice?
Where it is intended to rely on evidence not contained within the application itself, the evidence should be served with the application unless it has already been served.
Where a respondent wishes to rely on evidence which has not yet been served, they should serve it as soon as possible and in accordance with directions
If it is necessary for the applicant to serve any evidence in reply, it should be served asap and in accordance with any directions of the court
Evidence must be filed with the court as well as served on the parties. Exhibits to witness statements should not be filed unless the court directs otherwise.
What disclosure duties does an applicant have in without notice applications?
To make full and frank disclosure of all matters relevant to the application, including matters of fact or law which are adverse, including to the judge. There is a high disclosure duty in without notice applications. The ultimate touchstone is whether the presentation of the application is fair in all material respects.
The duty does not cease upon the making of the order sought. Later facts which may affect whether the court would withdraw the interim order should be disclosed to the court.
The golden rule is that, on an application made without notice, the party making the application must identity any material facts and in particular which may constitute a defence for not granting the order sought
What disclosure duties does an applicant have in a short notice application?
Still have a duty to make full and frank disclosure, except where duplicate information would be supplied.
What happens when full and frank disclosure is not observed in an interim injunction case?
The court may discharge the injunction. No excuse for an applicant to say that they were not aware of the importance of the matters they omitted to state. The court may discharge even where the court would have made the same order given those facts.
In deciding what to do, the court must take account of all the relevant circumstances, including the gravity of the breach, the excuse or explanation offered, and the severity and duration of the prejudice occasioned to the defendant, including whether the consequences of the breach were remediable and had been.
It would only be in exceptional circumstances where an order is not discharged where there had been deliberate non-disclosure or misrepresentation.
Equally, discharge is not automatic on any non-disclosure being material.
In what circumstances should a respondent apply to set-aside for material non-disclosure?
Not without proper reason. To do so for a trifling breach would be disproportionate.
Should not turn into substantial satellite litigation.
It is inappropriate to seek to set aside for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action.
Should a fresh injunction be granted when an interim injunction is discharged?
The judge has a balancing task to perform to prevent harm to the applicant but also to enforce compliance with the rules.
