5 - Interim Applications

Question 1

Which CPR rules are relevant to interim applications?

Answer 1

The main CPR rules which support this are:
- CPR 23 (Interim Applications)
- 23A PD (Interim Applications)
- CPR 2.8 (Counting Time)
- 44 PD 9 (Statements of cost).

Question 2

What is an interim application?

Answer 2

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

Examples of interim applications are varied, but include:
- Extending the time period for taking a particular step in the proceedings (like filing a defence)
- Applying to amend a statement of case
- Requiring the other party to provide further information
- Requesting specific disclosure of a document
- Seeking permission to rely on expert evidence.

Interim applications can be made by any party (defendant or claimant).

Question 3

When should an interim application be made?

Answer 3

• Parties should attempt to agree on matters to avoid the need for a court application.
• As soon as it becomes clear that an application is necessary or desirable, the party should apply (23A PD 2.5).
• Some applications can be dealt with at a case management conference or pre-trial review.
• Parties are required to ‘bunch’ their interim applications (23A PD 2.6) and issue applications to address outstanding matters at a single hearing whenever possible.

Question 4

What are the four steps to make an interim application?

Answer 4

1. Issue – When should the application be issued to the court?
2. Service – When should the application notice be served on the defendant.
3. Further Evidence – Both parties filing evidence at the court and serving this evidence on one another.
4. Hearing – Exchange of statements of costs no less than 24 hours before the hearing.

Question 5

What is the procedure for making an interim application?

Answer 5

The applicant (the party making the application) starts by filing an application notice (Form N244) at court.

The application notice must state (CPR 23.6):
- Who is making the application
- What order the applicant is seeking
- Why the order is being requested
- What information the applicant is relying on in support.

A court fee is payable.

The application should be made to the court where the main claim is being dealt with or, for pre-action applications, to the court likely to handle the claim (CPR 23.2).

Overall:
Submit the following to the court:
- Application notice (Form N244)
- Supporting evidence
- Draft order
- Court fee

Question 6

What are the requirements regarding evidence, draft orders, and the issue of an interim application, and what does the applicant submit to the court when making an application?

Answer 6

While some applications require specific evidence under the CPR, it is advisable to provide evidence for all applications to satisfy the court that the order should be granted (23A PD 7.1).

Evidence can be given in one of three ways:
1. In the application notice itself (Part C) with a statement of truth (23A PD 7.5)
2. By referring to existing statements of case
3. In a witness statement or, if required, an affidavit.

The applicant must also file a draft order at court outlining the terms sought.

The applicant submits the application notice, evidence, and draft order to the court, and the court then issues the application and notifies the hearing date and time.

Question 7

How should an application be served after it has been issued by the court?

Answer 7

Once the application has been issued, the applicant must serve the application notice, hearing date notice, supporting evidence, and draft order on the other party (CPR 23.7).

The court may serve these documents, but typically the applicant’s solicitor handles service to ensure certainty and retain control.

Service must be effected as soon as practicable and** no less than three clear days before the hearing**.

Certain applications, such as for summary judgment, have special time limits for serving evidence (CPR 24), and the rules on calculating time apply to these deadlines (CPR 2.8).

Question 8

How is further evidence dealt with in interim applications?

Answer 8

The respondent may file and serve further evidence in the form of a witness statement or affidavit as soon as possible (23A PD 7.2), and must comply with any specific time limits set by the court.

If the applicant wishes to respond to the respondent’s evidence, they must file and serve reply evidence as soon as possible (23A PD 7.3) and in line with any court-imposed timings.

Both parties must file and exchange their statements of costs related to the application no less than 24 hours before the hearing (44 PD 9.5).

Question 9

How are interim applications generally dealt with at a hearing?

Answer 9

Most interim applications are resolved at a hearing.

In line with the overriding objective, the court may order the hearing to take place by telephone if expected to last no more than one hour, or in exceptional cases, by video conference (23A PD 6).

A hearing may be dispensed with if:
- The parties agree to the terms of the order and submit a consent order
- The parties agree no hearing is necessary
- The court deems a hearing inappropriate (CPR 23.8).

Once the court has considered the application, it will issue its decision, and the order will be drawn up, sealed, and served by the court.

Question 10

When can an interim application be made without notice?

Answer 10

Without notice applications are only allowed in specific circumstances (23A PD 3):
- There is exceptional urgency (e.g., a remedy is needed immediately)
- The overriding objective is better served
- All parties consent
- The court gives permission
- A rule or practice direction allows it
- A hearing has been fixed and there is insufficient time to serve the application.

Even in such cases, the applicant should inform the other party and the court as soon as possible, explaining the application and the reasons for not giving notice.

Question 11

What procedural safeguards exist for without notice applications?

Answer 11

The applicant must explain in the application why no notice is given.

The applicant must highlight any arguments and evidence that would support the absent respondent’s position.

After the hearing, the applicant must serve the respondent with:
- The application notice
- Supporting evidence
- The court order (CPR 23.9).

The court order must include a statement outlining the respondent’s right to apply to set aside or vary the order.

Any application to set aside must be made within 7 days of the order being served (CPR 23.10).

Question 12

Provide a summary of how to make an interim application.

Answer 12

• Interim applications are made for orders or directions usually in the interim between commencement and trial, but sometimes pre-action.

The procedure for making an interim application is in CPR 23:
- An interim application should be made as soon as it is apparent it is necessary.
- Interim applications are usually made ‘with notice’.
- For the ‘with notice’ procedure, the applicant should file at court the application notice, supporting evidence (usually a witness statement) and a draft order and serve these on the respondent as soon as practicable but not less than three clear days before the hearing. There is also an opportunity for the respondent to file and serve evidence and the applicant to file and serve evidence in reply.
- The application notice must state what order the applicant is seeking and why.
- A ‘without notice’ application can be made where the matter is urgent, the object of the order would be defeated if notice was given or there is insufficient time to give notice, but safeguards exist to redress the potential unfairness.

Question 13

What is the purpose of a summary judgment?

Answer 13

• The purpose of summary judgment is to enable the court to dispose of claims or issues without the need for a full trial (CPR 24.1).
• If granted, the issue or claim is no longer considered at trial, saving time and costs.
• This furthers the overriding objective by allowing the court to handle weak cases or issues efficiently and proportionately.
• Either party can apply if they believe the opposing party’s position is sufficiently weak.

Question 14

What is the difference between a summary judgment and a strike out?

Answer 14

Summary judgment (CPR 24) is granted when a party has no real prospect of succeeding or defending a claim, and there is no other compelling reason for a trial.

Strike out (CPR 3.4) occurs when a party’s statement of case discloses no reasonable grounds or is an abuse of the court process.

Many cases overlap, and applications for both can be combined.

Question 15

What is the difference between a summary judgment and a default judgment?

Answer 15

Summary judgment considers the merits of a case where one party has no real prospect of success.

Default judgment is procedural and occurs when a defendant fails to respond to a claim within the set time limits, allowing the claimant to obtain judgment without the court considering the merits.

Question 16

What must be established for the court to dispose of a claim or issue without the need for trial (grounds for a summary judgment)?

Answer 16

Grounds for summary judgment (CPR 24.2):
A: The claimant has no real prospect of succeeding, or the defendant has no real prospect of defending the claim.
B: There is no other compelling reason for a trial.

“No real prospect” means the case is fanciful, imaginary, or false, but the respondent only needs to show some chance of success, not probable success.

Examples of compelling reasons for trial (re “There is no other compelling reason why the case or issue should be disposed of at trial):
- Defendant needs more time to investigate
- Expert evidence required
- Multi-party litigation
- Scrutiny of key documents
- Right to a jury trial (e.g., in cases of fraud)

Question 17

What is the evidence required for a summary judgment application?

Answer 17

Evidence must address the grounds (no real prospect of success or compelling reason for a trial).

The application notice or witness statement must:
- Identify any relevant point of law or document provision relied upon
- State that the applicant believes there is no real prospect of success and no other compelling reason for a trial.

Question 18

Who can apply for a summary judgment and when?

Answer 18

Claimant: After the defendant files an acknowledgment of service or defence (or earlier with court permission) (CPR 24.4).

Defendant: Any time after proceedings begin.

Court: Can initiate a summary judgment hearing of its own accord (CPR 1.4(2)(c) and CPR 3.3).

It is best to apply before or at the same time as filing Directions Questionnaires to avoid unnecessary costs.

Question 19

What happens if a claimant does not comply with a relevant pre-action protocol when applying for summary judgment?

Answer 19

The court will usually not consider the application before the defence is filed or the time to file has expired (24 PD 2(6)).

If summary judgment is sought before a defence is served, the defendant’s time to file a defence is extended until after the hearing (CPR 24.4(2)).

Question 20

How is an application for summary judgment made?

Answer 20

Submit the following to the court:
- Application notice (Form N244)
- Supporting evidence
- Draft order
- Court fee

Serve these documents at least 14 days before the hearing.

The respondent must file evidence at least 7 days before the hearing, and the applicant must respond 3 days before the hearing.

Both parties must exchange statements of costs no less than 24 hours before the hearing.

Question 21

What must be included in the application notice for summary judgment?

Answer 21

The application notice must:
- State that it is an application for summary judgment under Part 24.
- Highlight the requirement for the respondent to file and serve evidence 7 days before the hearing (24PD 2).

Question 22

What are the potential orders at the summary judgment hearing?

Answer 22

The court can issue several possible orders:

Dismissal of the application: The case continues to trial, and the court provides directions.

Dismissal of the claim: If the defendant’s application succeeds, the claim is dismissed.

Judgment on the claim: If the claimant’s application succeeds, judgment is entered in their favour.

Conditional order: If the respondent has a slim chance of success, they may continue but under conditions, such as paying money into court.

These orders apply to the entire claim or specific issues within it.

Question 23

Provide an overview of summary judgments.

Answer 23

• Summary judgment is the disposal of cases or issues without trial.
• The claimant or defendant can apply for summary judgment or the court can fix a summary judgment hearing of its own initiative.
• The grounds for summary judgment are that the claimant has no real prospect of succeeding on the claim or issue or the defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial.
• An application for summary judgment is made using an application notice supported by evidence and a draft order.
• The procedure requires both parties to file and serve evidence within specific deadlines before the summary judgment hearing.
• The court can order judgment on the claim, dismissal of the claim, dismissal of the application or a conditional order.

Question 24

What is the purpose of an interim payment?

Answer 24

An interim payment is a payment on account of damages, debt, or other sum (except costs) which a defendant may be held liable to pay to a claimant (CPR 25.1(1)(k)).

The claimant may wish to ask for an interim payment to assist financially during the interim period prior to settlement or trial.

For example, in a personal injury claim, a payment would be made on account of damages.

An application for an interim payment is made by the claimant.

Question 25

What conditions must be satisfied for the court to make an interim payment?

Answer 25

• The court will only make an order for an interim payment if one or more of the following conditions are satisfied:
• The defendant has admitted liability to pay damages (or some other sum) to the claimant.
• The claimant has obtained judgment against the defendant for damages to be assessed (or for a sum of money, other than costs, to be assessed).
• The court is satisfied that if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant from whom the interim payment is sought, whether or not the defendant is the only defendant or one of several defendants.

Question 26

What evidence is required for an interim payment application?

Answer 26

The applicant must provide evidence alongside their application, which must cover the following (25B PD 2.1):
- The reasons for believing that the conditions for making an interim payment are satisfied.
- The sum of money for which final judgment is likely to be given.
- The sum of money sought by way of an interim payment.
- The items or matters in respect of which the interim payment is sought.
- Any other relevant matters.

In claims for personal injuries: details of special damages and past and future loss.

In claims under the Fatal Accidents Act 1976: details of the person(s) on whose behalf the claim is made and the nature of the claim.

Supporting documents, such as medical reports in personal injury claims, must be exhibited.

Question 27

What is the procedure for seeking an interim payment under CPR 25.6?

Answer 27

A claimant seeking an interim payment should first request a voluntary interim payment from the defendant. If the defendant refuses, for example if it is defending the claim, the claimant may apply to the court for an interim payment (CPR 25.7).

A claimant can make a request for a voluntary payment at any stage in the proceedings, including pre-action. However, a claimant cannot apply to the court for an interim payment until after the period for the defendant to file an acknowledgment of service has ended (CPR 25.6(1)).

The claimant may make more than one application for an interim payment order.

The court must not make an interim payment order exceeding a reasonable proportion of the likely final judgment amount, considering contributory negligence, set-off, or counterclaim (CPR 25.7).

The court may also order the payment to be made in instalments.

Question 28

How does a claimant apply for an interim payment?

Answer 28

1. Issue:
   The claimant must submit an application notice (form N244).
   Provide supporting evidence.
   Submit a draft order.
   Pay the fee for the application.
2. Service (at least 14 days before the hearing):
   Serve the application notice (form N244).
   Serve the supporting evidence.
   Serve the draft order.
   Include the notice of the hearing date.
3. Further evidence:
   The respondent must file and serve their evidence at least 7 days before the hearing.
   The applicant must file and serve any evidence in reply at least 3 days before the hearing.
   Both parties must file and exchange cost statements no less than 24 hours before the hearing.

Question 29

What restrictions apply to interim payments?

Answer 29

Unless the defendant agrees, an interim payment made by the defendant (whether voluntarily or by court order) will not be disclosed to the trial judge until all questions of liability and quantum have been decided (CPR 25.9).

Question 30

Provide a summary for interim payments.

Answer 30

• An interim payment is an order that can be applied for by the claimant.
• An interim payment is a payment on account of damages, debt or other sum which a defendant may be held liable to pay to a claimant.
• If a claimant wishes to apply for an interim payment it must satisfy the court of one of the conditions in CPR 25.7.
• The procedure provides that the claimant must serve the application notice and evidence on the defendant at least 14 days before the interim hearing.
• Any interim payment order must be of no more than a reasonable proportion of a likely final judgment.
• An interim payment does not get disclosed to the judge at trial.

Question 31

What is the purpose of security of costs?

Answer 31

Security for costs is an application made by a defendant who is concerned that the claimant will not be willing or able to pay the defendant’s costs if the claim is successfully defended (CPR 25.12).

The court can order that security be given in various ways, but most commonly it requires a payment into court by the claimant, so that those funds are available to meet any costs order later made in the defendant’s favour.

Security for costs relates solely to the costs of the claim, not the level of damages that may be awarded.

Applications can be made by:
- A defendant against a claimant (the usual case).
- A claimant against a defendant in respect of a counterclaim.
- A third party against a defendant in respect of an additional claim (CPR 20).

Question 32

What are the grounds for security of costs?

Answer 32

The defendant must satisfy the court of two matters before an order for security for costs can be made:
- It is just to make an order, having regard to all the circumstances of the case (CPR 25.13(1)(a)).
- One or more of the prescribed conditions in the rules are satisfied (CPR 25.13(1)(b) and (2)).

The court will also consider the overriding objective, ensuring that the case is dealt with justly and at proportionate cost.

Question 33

What are the prescribed conditions for security of costs?

Answer 33

The prescribed conditions are:
- The claimant is resident out of the jurisdiction (but not in a State bound by the 2005 Hague Convention) (CPR 25.13(2)(a)).
- The claimant is a company, and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so (CPR 25.13(2)(c)).
- The claimant has taken steps regarding its assets that would make enforcement of a costs order against it difficult (CPR 25.13(2)(g)).

Other grounds include:
- The claimant has changed address to evade the consequences of litigation (CPR 25.13(2)(d)).
- The claimant failed to give an address in the claim form (CPR 25.13(2)(e)).
- The claimant is acting as a nominal claimant and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so (CPR 25.13(2)(f)).

Question 34

What does the condition regarding a claimant resident out of the jurisdiction mean?

Answer 34

The condition states that the claimant must be resident out of the jurisdiction (but not in a State bound by the 2005 Hague Convention) (CPR 25.13(2)(a)).

Resident means:
- For an individual, their habitual or normal residence.
- For a company, where the company’s central management and control is exercised.
- Out of the jurisdiction means not in England and Wales. This is important because the defendant may have greater difficulty enforcing any costs order if the claimant is not in England or Wales. Security for costs is not available if the claimant is resident in a state bound by the 2005 Hague Convention, due to limited reciprocal arrangements easing enforcement.

Question 35

What is the ‘impecunious claimant company’ condition for security for costs?

Answer 35

The claimant must be a company and there must be reason to believe it will be unable to pay the defendant’s costs if ordered to do so (CPR 25.13(2)(c)).

The defendant must show:
- The company’s inability to pay costs.
- The amount of the likely costs.

The defendant must demonstrate that the company “will be unable” to pay its debts when the order is made, but does not have to show this on a balance of probabilities.

They can show “reason to believe” the claimant company will be unable to pay, even if the claimant provides substantial evidence to the contrary (Jirehouse Capital v Beller [2008] EWCA Civ 908).

Question 36

What is the ‘claimant moving assets’ condition for security for costs?

Answer 36

This is when the claimant has taken steps regarding its assets that would make it difficult to enforce a costs order against them (CPR 25.13(2)(g)).

This condition aims to prevent injustice to a defendant where the assets available for enforcement have been or are being put beyond reach, such as through:
- Dissipation of assets.
- Transfer of assets overseas or into the names of third parties.
- Transfers to places unknown to the defendant.

Question 37

What is the court’s discretion regarding security for costs?

Answer 37

Even if a prescribed condition is satisfied, the court is not obliged to grant security. Security will only be granted if:
- The court is satisfied that it is just to make such an order, having regard to all the circumstances of the case.

The main consideration is the ability of the respondent to comply with the security order. The court should not normally make a claimant’s continuation of the claim dependent on a condition they cannot fulfil, as this restricts access to the justice system.

Balancing potential injustice to the claimant against the defendant’s risk of costs is essential, especially if the application is based on the claimant’s impecuniosity.

Question 38

What other considerations does the court take into account for security for costs?

Answer 38

Besides the ability to comply with the order, the court considers:
- Admission of liability by the defendant.
- Substantial open offers made by the defendant.
- Promptness of the application; delay makes the application less likely to succeed.
- The genuineness of the claim and its prospects of success; a claim that seems insincere may make the defendant’s application more likely to succeed.
- If the defendant caused the claimant’s financial difficulties, it reduces the likelihood of success for the application (Sir Lindsay Parkinson v Triplan [1973] 2 All ER 273).

Question 39

What is the procedure to apply for security for costs?

Answer 39

The normal rules for interim applications apply when applying for security for costs, including:
- The application notice must state the applicable ground(s) or enactment.
- The application must be supported by written evidence (CPR 25.12(2)), typically via a witness statement that covers:
- The grounds for the application.
- Factors influencing the court’s discretion.
- Estimated costs to trial, with a statement of costs or an approved costs budget.
- The amount of security requested.

Question 40

How is the amount of security determined?

Answer 40

If the court orders security for costs, it will determine:
- The amount of security.
- The manner in which and the time within which security is provided (CPR 25.12(3)).

The amount is at the court’s discretion and should be just, taking into account:
- The defendant’s likely costs.
- Security can cover the entire action or up to a specific point in time (e.g., until disclosure).
- The amount can include costs incurred (including pre-action) and future costs.
- Adjustments may be made for likely reductions in assessed costs or settlement possibilities.
- Other factors, such as delays, may influence whether security is provided for already incurred costs or only future costs.

Question 41

What are the types and timing of security for costs?

Answer 41

Security can be provided in several ways, including:
- A payment into court.
- A payment to the defendant’s solicitor.
- A bank guarantee.
- An undertaking to pay costs.

The most frequent order is for a sum to be paid into court by a specified date

Question 42

Provide a summary for security of costs.

Answer 42

• The applicant in a security for costs application is the defendant.
• Security for costs is the appropriate application where the defendant has concerns that if it successfully defends the claim and the claimant is ordered to pay the defendant’s costs, the claimant will not be willing / able to do so.
• The defendant must satisfy the court that, having regard to all the circumstances of the case, it is just to make an order. Factors that the court will consider include the claimant’s ability to pay, the prospects of the claim succeeding and any delay in making the application.
• The defendant must also show that one or more of the six conditions prescribed by the rules applies.
• Any security for costs order will also provide for the amount, type and timing of the security payment.
• The application must be supported by evidence, usually a witness statement.

Question 43

What is the purpose of an interim injunction?

Answer 43

An injunction is an order of the court requiring a party to do or to refrain from doing a given act. Breach of an injunction is potentially punishable as contempt of court, and may result in a fine and/or imprisonment.

Interim Injunction: A temporary measure taken at an early stage in the proceedings (including pre-action) before trial and before any final decision on the merits of either party’s case. It is intended to restrain the respondent from causing irreparable or immeasurable damage to the applicant by continuing conduct or ceasing conduct that has led to the dispute.

Purpose: The interim injunction is used to prevent harmful or damaging conduct before the final determination at trial and is usually made in circumstances of urgency. It typically lasts until the trial or until a further order is made.

Question 44

What are the types of interim injunctions?

Answer 44

1. Prohibitory Injunction: Requires the respondent to refrain from doing an act.

Example: An employer brings a claim against an employee for breaching a confidentiality clause in an employment contract. The employer obtains an interim prohibitory injunction preventing the employee from using specified confidential information until trial.

2. Mandatory Injunction: Requires the respondent to do a specific act.

Example: In a claim alleging that a software supplier failed to deliver up software at the end of the parties’ relationship, the claimant obtains an interim mandatory injunction requiring the software to be delivered until trial.

3. Quia Timet Injunction: Prevents a threatened wrong before it is committed.

Example: A customer obtains an interim mandatory injunction requiring a bank to keep their account open, arguing that closing it would be a breach of statutory duty.

Question 45

What evidence is required for an injunction under the American Cyanamid guidelines?

Answer 45

An injunction may be granted where it is just and convenient under s.37 of the Senior Courts Act 1981.

In American Cyanamid Co v Ethicon Ltd [1975] AC 396, Lord Diplock established the American Cyanamid guidelines, which guide the court’s discretion in granting interim injunctions.

These guidelines include:
- Step 1: Is there a serious question to be tried?
- Step 2: Would damages be an adequate remedy for either party?
- Step 3: Where does the balance of convenience lie?

Question 46

What is step 1 in assessing an interim injunction: Is there a serious question to be tried?

Answer 46

An injunction is a remedy, not a cause of action, so an applicant must have a pre-existing, actual cause of action.

The court must be satisfied that the claim is not frivolous or vexatious, and that there is a serious question to be tried.

If the applicant cannot meet this test, the injunction will generally be refused, and the court will not proceed to steps 2 and 3.

Question 47

What is step 2 in assessing an interim injunction: Would damages be an adequate remedy for either party?

Answer 47

Step 2(a) – Applicant’s perspective: The court will refuse an injunction if the applicant can be adequately compensated by damages for any loss caused by the refusal to grant the injunction.

Damages may be inadequate if:
- The respondent has no means to pay them.
- The harm is irreparable, cannot be quantified, or is serious and likely to continue.

Step 2(b) – Respondent’s perspective: The court asks whether the respondent could be adequately compensated by the applicant if it turns out the injunction should not have been granted (e.g., if the applicant loses at trial).

If the respondent could be compensated, this supports granting the injunction.

Question 48

What is step 3 in assessing an interim injunction: The balance of convenience?

Answer 48

If damages are inadequate for both parties, the court considers where the balance of convenience lies.

The court weighs a broad range of factors to decide which outcome carries the lesser risk of injustice—granting or refusing the injunction.

Question 49

What does it mean that an injunction is an equitable and discretionary remedy?

Answer 49

Equitable principles apply to the granting of an injunction, including that:
- An injunction will not be granted when it would serve no practical purpose.
- The court may refuse an injunction if the applicant has not come with clean hands (i.e., has acted improperly).
- Excessive delay in seeking the injunction may lead to its refusal.

An injunction is also a discretionary remedy, meaning that there is no automatic right to an injunction even if all guidelines are met.

Question 50

What is the procedure for obtaining an interim injunction?

Answer 50

An application for an interim injunction follows the general procedure for any interim application but with additional procedural considerations due to the seriousness of its consequences.

These include:
- A cross-undertaking in damages.
- Without notice safeguards.
- Applications before a claim is issued.

Question 51

What are cross undertakings in damages, considered in the procedure for applying for an interim injuction?

Answer 51

A cross-undertaking in damages is a promise by the applicant to compensate the respondent for any loss sustained because of the injunction, if it turns out that the injunction should not have been granted (e.g., if the case is lost or the proceedings are discontinued).

This undertaking is made to the court, and the court can also require undertakings to protect third parties affected by the injunction.

Question 52

What are the safeguards for without notice applications for interim injunctions?

Answer 52

An interim injunction can be sought without notice if justified, but the injunction is initially granted for a limited time.

A second hearing is fixed, called the return date, where the respondent is given notice and the chance to make representations.

At the return date, the court can:
- Maintain the injunction until trial.
- Discharge the injunction.
- Vary the injunction’s terms.
- Enforce the applicant’s cross-undertaking in damages if the injunction should not have been granted.
- Accept the respondent’s undertaking to comply in place of the injunction.

The applicant must make full and frank disclosure of all facts or law relevant to the application, including those adverse to the applicant.

Question 53

What are the requirements for applications made for an interim injunction before a claim is issued?

Answer 53

In exceptional urgency, an interim injunction can be applied for before a claim form is issued.

The court will only grant such an application if:
- The matter is urgent; or
- It is otherwise desirable in the interests of justice.

The applicant must undertake to issue a claim form immediately.

Question 54

Provide a summary of interim injunctions.

Answer 54

An interim injunction requires a party to do (mandatory) or to refrain from (prohibitory) an act on a temporary basis, usually until trial.

An injunction may be granted where it is just and convenient.

An injunction is both an equitable and a discretionary remedy. The guidelines for the courts’ exercise of discretion are:
- Step 1: Is there a serious question to be tried?
- Step 2: Would damages be an adequate remedy for the applicant and can the respondent afford to pay? If not, would damages be an adequate remedy for the respondent if it later transpires the injunction was wrongly granted and can the applicant afford to pay?
- Step 3: Where does the balance of convenience lie?

A court will often refuse to order an interim injunction unless the applicant undertakes to pay damages to the respondent if it transpires the injunction should not have been awarded.