3.1 Interim applications

Question 1

What is an interim application?

Answer 1

Interim applications are applications for orders or directions made to the court, usually in the ‘interim’ period between the commencement of proceedings and trial. Some interim remedies can be applied for before the commencement of proceedings.

Question 2

What is an interim order?

Answer 2

Courts can make an interim order before the start of the trial to help the parties to pursue their cases. Apart from summary judgment orders, interim orders do not generally determine the outcome.

Question 3

Where are most of the rules for Interim Applications found?

Answer 3

CPR 23

And a few in CPR 25

Question 4

At what point can an interim remedy be made?

Answer 4

CPR 25.2
(1)
An order for an interim remedy may be made at any time, including—
(a)
before proceedings are started; and
(b)
after judgment has been given.

Question 5

Under what circumstances may a court grant an interim order before a claim has been made?

Answer 5

CPR 25.2(2)(b)
the court may grant an interim remedy before a claim has been made only if—
(i)
the matter is urgent; or
(ii)
it is otherwise desirable to do so in the interests of justice;

Question 6

What must the defendant do before filing an interim application?

Answer 6

CPR 25.2(2)(c)
unless the court otherwise orders, a defendant may not apply for any of the orders listed in rule 25.1(1) before he has filed either an acknowledgement of service or a defence.

Question 7

Must an applicant seeking an order always make an application notice?

Answer 7

CPR 23.3
(1)
The general rule is that an applicant must file an application notice.
(2)
An applicant may make an application without filing an application notice if—
(a)
this is permitted by a rule or practice direction; or
(b)
the court dispenses with the requirement for an application notice.

Question 8

Can interim orders be made without applications?

Answer 8

CPR 3.3
… the court can make interim orders on an application or of its own initiative [in the exercise of its general case management powers].
(4)
The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.
(5)
Where the court has made an order under paragraph (4) –
(a)
a party affected by the order may apply to have it set aside, varied or stayed; and
(b)
the order must contain a statement of the right to make such an application.

Question 9

When should an interim application be made?

Answer 9

23A PD 2.7

Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.

Question 10

What should a party do if it wants to make more than one interim application?

Answer 10

23A PD 2.8
[Parties are under a specific obligation to ‘bunch’ their interim applications so that they can be dealt with at a single hearing wherever possible.]

Question 11

Where should a party file an interim application?

Answer 11

CPR 23.2
(1)
The general rule is that an application must be made to the court or County Court hearing centre where the claim was started.
(2)
If the claim has been transferred to another court, make the application there.

Question 12

What are the four stages of an interim application made with notice?

Answer 12

1.
File and issue
2.
Service of application notice (N244) and evidence
3.
Further evidence
4.
Hearing

Question 13

Under what circumstances can the court grant an interim order on a without notice application?

Answer 13

CPR 25.3(1)
The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.

Question 14

What are the three ways to give evidence in an interim application?

Answer 14

1.
Part C of the application notice if it contains a statement of truth - 23A PD 9.7,
2.
By referring to the existing statements of case,
3.
By witness statement or affidavit.

Question 15

What must an interim application include when filed at court?

Answer 15

1.
N244 form
2.
draft order
3.
evidence
4.
court fee

Question 16

When must service of interim application notices be effected?

Answer 16

CPR 23.7(1)
(a)
… as soon as practicable after it is filed; and
(b)
except where another time limit is specified in these Rules or a practice direction, … at least 3 days before the court is to deal with the application.
24A PD 7.3
Exception for applications for summary judgment - not less than 4 days before the hearing.

Question 17

When must service of application notices for summary judgment be effected?

Answer 17

24A PD 7.3
The application notice and a copy of every affidavit or witness statement in support and of any exhibit referred to therein must be served on the defendant not less than 4 days before the hearing of the application.

Question 18

What are the six circumstances under which an interim application can be made without serving notice on the defendant?

Answer 18

23A PD 3
(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 paragraph 2.10 above applies [the hearing has been fixed and there is not sufficient time], or
(6)
where a court order, rule or practice direction permits.

Question 19

What should be done where the application notice is not being served because of a lack of time?

Answer 19

23A PD 4.2
Give informal notice to the other party.
CPR 23.7(4)
If –
(a)
an application notice is served; but
(b)
the period of notice is shorter than the period required by these Rules or a practice direction,
the court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.

Question 20

When may an interim application be decided without a hearing?

Answer 20

CPR 23.8
if—
(a)
the parties agree as to the terms of the order sought;
(b)
the parties agree that the court should dispose of the application without a hearing, or
(c)
the court does not consider that a hearing would be appropriate.

Question 21

What must the court do if it dismisses an application for being totally without merit?

Answer 21

CPR 23.12
(a)
the court’s order must record that fact; and
(b)
the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 22

Must the hearing go ahead if the parties agree an order (“consent order”) beforehand?

Answer 22

CPR 40.6
[Provided none of the parties is a litigant in person the court can approve the consent order without a hearing.

[The parties must notify the court as soon as possible so the hearing can be vacated.]

Question 23

What is the general rule for serving an application notice?

Answer 23

CPR 23.4(1)

The general rule is that a copy of the application notice must be served on each respondent.

Question 24

What are the four stages of an application without notice?

Answer 24

1.
Issue
2.
Without notice hearing
3.
Service
4.
With notice hearing

Question 25

What documents must the applicant file to apply for a without notice hearing?

Answer 25

1.
An application notice
2.
Supporting evidence
3.
A draft order

Question 26

What must the application for a without notice hearing contain?

Answer 26

CPR 25.3
(2)
evidence, unless the court orders otherwise.
(3)
the reasons why notice has not been given.

Question 27

What safeguards protect respondents when an application is made without notice?

Answer 27

Memory Corp Plc v Sidhu (No.2) [2000] 1 W.L.R. 1443, CA [and other case law]
The applicant must make full and frank disclosure of all matters relevant to the hearing including matters of fact or law which are or may be adverse to the applicant (including any defence that may be available to the respondent).

Question 28

How is the duty of full and frank disclosure enforced?

Answer 28

If the duty is not complied with, the court can:

• Set the order aside. (This is the main sanction.)
• Order the applicant to pay the respondent’s costs on an indemnity basis.
• Make a finding of contempt.

Question 29

When will an undertaking in damages be required?

Answer 29

25A PD 5.1
An undertaking in damages will almost always be required for an interim injunction or a freezing injunction or search order - “unless the court orders otherwise”.

Question 30

What is the deadline for the respondent to apply to set aside an order made without notice?

Answer 30

CPR 23.10(2)
An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

Question 31

How are applications without notice heard?

Answer 31

25A PD 4.2
These applications are normally dealt with at a court hearing but cases of extreme urgency may be dealt with by telephone.

Question 32

What must C do after obtaining a without notice order?

Answer 32

CPR 23.9(2)
Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person—
(a)
against whom the order was made; and
(b)
against whom the order was sought.

Question 33

When must an order made without notice be served?

Answer 33

23APD.4.1

As soon as practicable

Question 34

What must be served with an order made without notice?

Answer 34

CPR 23.9
(2)
a copy of the application notice and any evidence in support
(3)
a statement of the right to make an application to set aside or vary the order under rule 23.10.

Interoute Telecommunications (UK) Ltd v Fashion Gossip Ltd, Times (1999) 10 November 1999
A note of the hearing.

44 PD 9.5
A statement of costs

Question 35

What are the principles of full and frank disclosure which protect the respondent in an application made without notice?

Answer 35

RWD Technologies (UK) Ltd v Gibbs QBD [2001] All ER (D) 126 (Nov)
1.
To show the utmost good faith.
2.
To identify the crucial points for and against the application.
3.
To present the case fairly, thoroughly and objectively.
4.
The advocate should personally prepare the draft order and skeleton argument.
5.
Where the order sought is long and complex, to produce it before the hearing starts, except in exceptional circumstances.

Question 36

What should the court do after granting an interim remedy before a claim has commenced?

Answer 36

CPR 25.2(3)

… give directions requiring a claim to be commenced.