6. Interim Applications Flashcards
Reasons for making an interim application to the court?
- Ensure compliance with procedural matters
- requesting more time
- assist in preparation for trial
- to consider penalties
If a party wants to make an interim application to the court, what should they do first?
- communicate with the other party to try to resolve to issue to comply with the overriding objective and avoid cost-penalties
Interim Applications: Form
Must complete application notice in form N244
What court must applicants (for interim applications) apply to?
The court where the claim started OR where it has been transferred
What if form N244 does not have enough space to explain the issues?
The applicant had file a separate witness statement at the same time or can rely on statements in the statements of case
Essential inclusions on form N244: Timeline
The applicant must include a time estimate of how long the hearing of the application is likely to last (unless the application is made without notice)
When must a draft order being included with N244?
Pretty much always (to explain the order sought), unless the case is incredibly simple
Serving the application notice on the respondent: requirements
- The application notice must be served on the opponent at least three clear days before the court hearing to allow the other party to respond and object to the application should they wish
- Clear days = date of service and date of hearing are excluded, as well as weekends and bank holidays
If an applicant wishes to make an application without notice, what documents must be served on the respondent?
- court order
- application notice
- supporting evidence
Interim Injunction
Order sought to prevent a harmful activity occurring prior to when a trial can be held
Purpose of the Interim Injunction
Preserve the ‘status quo’ (current state of affairs) until trial
If applicant wants an interim injunction, what must they show to the court?
- Compelling evidence that there is a serious issue to be tried AND
- damages will not be an adequate remedy
- Linked to an underlying cause of action (eg. tort, contract)
Purpose of a Freezing Injunction
Prevents a party from removing their assets from the jurisdiction
Grounds for granting a Freezing Injunction
- Good arguable case
- Real risk that the respondent will dispose of their assets
Purpose of a search order
Compels respondent to allow their premises to be searched (used when applicant believes respondent has documents which belong to them)
- Application made without notice
What evidence is needed for applications for interim injunctions without notice?
Affidavit
What safety mechanism is in place in the event that an interim injunction is wrongly granted (and the respondent loses out financially)
The applicant will have undertaken that they will pay damages if this is the case
- Their financial suitability will be evidenced with witness statement / affidavit submission
Summary Judgement: Purpose
Disposes of claims or issues without need for a full trial.
Grounds for summary judgement
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.
Who can apply for a summary judgement and when>
Claimant: After the defendant has filed an acknowledgement of service or defence (or earlier with court’s permission)
Defendant: Can apply any time after proceedings have commenced.
Court: Can fix hearing of its own initiative.
If the claimant applies for summary judgement before the defendant has served the defence, how does this affect proceedings?
the defendant need not file a defence prior to the hearing (CPR 24.4(2)).
If the defendant applies for summary judgement - what is the effect on proceedings wrt statements of case?
the defendant does not have to file either an acknowledgement of service or a defence until after the summary judgment hearing.
Summary Judgement: Potential Orders the court can make
- Dismissal of the application (issues continue to trial)
- Dismissal of the claim (defendant ‘wins’ and claim is dismissed)
- Judgement on the claim (claimant succeeds, judgement is entered for claimant who has ‘won’)
- Conditional Order (refuses summary judgement but allows respondent to continue subject to conditions such as paying a sum of money)
When would a judge hearing an application for summary judgement decide to make a conditional order?
If the respondent ‘may’ succeed but it is unlikely
Definition of Interim Payment
A payment on account of damages, debt or other sum which a defendant may be held liable to pay to the claimant
Conditions to grant an interim payment
ONLY 1 NEEDED:
- The defendant has admitted liability to pay damages (or some other sum of money) to the claimant.
- The claimant has obtained judgment against that defendant for damages to be assessed (or for a sum of money other than costs) to be assessed.
- It 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 he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim.
What evidence is required by the court when deciding whether to grant an interim payment?
o The reasons for believing that the conditions for making an interim payment are satisfied;
o The sum of money for which final judgment is likely to be given;
o The sum of money sought by way of an interim payment;
o The items or matters in respect of which the interim payment is sought;
o Any other relevant matters;
o In claims for personal injuries, details of special damages and past and future loss; and
o 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.
If a claimant is seeking an interim payment from the defendant, what first step should they take?
A claimant would first request a voluntary payment from the defendant (ie. through their insurance) and then made an application to court if refused.
When can a claimant file an application notice for an interim payment?
Must be made after the end of the period for the defendant filing an acknowledgement of service.
What amount can the court grant by way of an interim payment?
The court must not make an interim payment of more than a reasonable proportion of the likely amount of the final judgment.
Quia timet injunctions
Allow both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed.
Prohibitory Injunction
Requires respondent to refrain from doing an act
Mandatory Injunction
Requires the respondent to do a specific act
When might the court refuse the application for an injunction?
Equitable remedy, so:
- must serve a practical purpose
- applicant must have ‘clean hands’
- cannot have undue delay (delay defeats equity)
If an interim injunction is granted without notice - how long will it last for
The court will grant it for a limited period and reassess at a second harding ‘the return date’
Can a party apply for an interim injunction before a claim form has been issued?
Yes, in cases of exceptional urgency
General Rule: When can a claimant apply for summary judgement?
Once defendant has filed an acknowledgement of service or defence UNLESS
a. court gives permission
b. practice direction states otherwise
In which cases can the claimant apply for summary judgement BEFORE the expiry of the period within which the defendant can file defence / AoS
- for specific performance or rescission of an agreement (whether in writing or not) for the sale, purchase, exchange, mortgage or charge of any property, or for the grant or assignment of a lease or tenancy of any property, with or without an alternative claim for damages; or
- for the forfeiture or return of any deposit made under such an agreement,
