7) Interim Applications

Question 1

Definition

Answer 1

Applications that are made after litigation starts but before the trial. Applications for orders or directions that are made before the trial or substantive hearing

Question 2

Procedure

Answer 2

The party who is applying must complete an application notice and form N244 should be used. It must state what order is being sought and why, set out the facts the party is relying on in support of or for opposing the application. Witness statement (if insufficient space on form N244) - need to include the factual information and the evidence in support of the application and anticipate the opponent’s case. Sufficient detail must be provided to persuade the court to make the order. Needs a statement of truth. It must be served at least 3 clear days before the court hearing.

Question 3

Notice - General rule

Answer 3

The general rule is that applications must be made on notice to the other party.

Question 4

Notice - Exceptions

Answer 4

1) There is exceptional urgency
2) The overriding objective of the CPR would be best achieved by making an order without notice

Question 5

Procedure without notice

Answer 5

As soon as practicable after the order is issued they should send copies of these documents:
- The court order
- The application notice
- Any supporting evidence
The respondent may apply to set aside or vary the order within 7 days of it being granted

Question 6

Interim costs

Answer 6

The general costs rule - applies with the loser paying the winner’s costs - if the application is granted the respondent will pay the applicant’s costs. However the type of costs order will depend upon the nature of the application and interim costs orders usually reflect to a large extent the conduct of the parties

Question 7

Summary judgment - Definition

Answer 7

To enable a claimant to bring the matter to an early conclusion if the defence filed was weak they can bring a summary judgment under Part 24. Although such applications are normally brought by the claimant, the defendant may also apply for summary judgment. This may occur if, for example, a litigant in person has filed a weak particulars of claim or one which has no legal basis.

Question 8

Summary judgment - When will the court give one?

Answer 8

If it considers that:
- The party has no real prospect of succeeding on the claim, defence or issue AND
- There is no other compelling reason why the case should be disposed of at trial
Have to prove both but a respondent need only succeed in preventing the applicant from proving one aspect to ensure the dismissal of the application for summary judgment.

Question 9

Summary judgment - Procedure

Answer 9

• Applicant files and serves form N244 and witness statement at least 14 days before the hearing
• Respondent files and serves own evidence at least 7 days before the hearing
• Applicant may file and serve further evidence at least 3 days before the hearing

Question 10

Summary judgment - Applicant’s application granted

Answer 10

• R pays A’s costs
• Judgment entered and proceedings end subject to enforcement

Question 11

Summary judgment - Respondent’s application granted

Answer 11

• A pays R’s costs
• Claim dismissed and proceedings end

Question 12

Summary judgment - Conditional order

Answer 12

The application has not been granted, but equally the respondent has not succeeded in having it dismissed – neither side has won.
- Costs in the case
- Case proceeds if condition is satisfied

Question 13

Interim injunctions - Definition

Answer 13

They are a discretionary remedy and may only be granted when damages are not an adequate remedy for the applicant. Aim is to maintain the status quo (the current position) until the trial. Generally, they will be used to prevent the defendant from taking certain steps, such as soliciting customers of the claimant, but they can also order a party to take action, for example to stop committing a nuisance.

Question 14

Interim injunctions - Guidelines

Answer 14

When deciding whether to grant one the court will determine whether:
- There is a serious question to be tried
- Damages are an adequate remedy for either side
- The balance of convenience lies in favour of granting or refusing the injunction
- Whether there are any special factors

Question 15

Interim injunctions - Procedure

Answer 15

The party who seeks the order must apply by way of an application notice with evidence in support e.g witness statement. Usually made on notice. However the court can grant one without notice if there are good reasons for doing so.

Question 16

Interim payments - Definition

Answer 16

An advance payment on account of any damages, debts or other sum that a defendant may be held liable to pay. The interim payment procedure enables a claimant who has a strong case on liability to avoid the financial hardship and/or inconvenience that might otherwise be suffered because of any delay during the period between the start of the claim and its final determination

Question 17

Interim payments - Procedure

Answer 17

An application notice for an interim payment must be served at least 14 days before the hearing date. Evidence must be provided and should set out:
- The amount requested and what it will be used for
- The amount of the sum of money that is likely to be awarded at final judgment
- The reasons for believing that the grounds required by the CPR are satisfied

Question 18

Interim payments - Grounds

Answer 18

The grounds which must be satisfied before the court will make an interim payment are:
- The defendant has admitted liability
- The claimant has obtained a judgment against the defendant for damages to be assessed or for a sum of money
- The court is satisfied that if the case went to trial the claimant would obtain judgment for a substantial amount of money - have to prove on the balance of probabilities that they will succeed

Question 19

Interim payments - Court’s discretion

Answer 19

The court has discretion in relation to 2 Qs:
- Should an order for an interim payment be made? If the issues are complicated or difficult questions of law arise the court may decide not to order an interim payment at all
- If yes should the amount be? If the applicant succeeds, the court cannot order a sum of more than a reasonable proportion of the likely amount of the final judgment and must take into account contributory negligence and any counterclaim. In other words, the court will try and calculate what figure is indisputably due to the claimant and then determine what the defendant is able to pay