Case management and any interim applications relevant to a claim

Question 1

What is an interim application?

Answer 1

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.

Question 2

Examples of interim applications

Answer 2

• 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.

Question 3

Processing of issuing an interim application

Answer 3

The process of making an application begins by the applicant filing an application notice (Form N244) at court. The application notice states (CPR 23.6):

(a) Who is making the application
(b) What order the applicant wants
(c) Why the applicant is asking for that order
(d) What information the applicant relies on in support of the application.

The application should be made to the court in which the main claim is presently being dealt with or, in the case of pre-action applications, is likely to be dealt with

Question 4

What documents do you submit for an interim application

Answer 4

Form N244 (application notice)
Draft Order
Supporting evidence

Question 5

How can evidence be given in a interim application

Answer 5

In the application notice itself (Part C, in which case the statement of truth must also be
completed (23A PD 9.7))
* By referring to the existing statements of case
* In a witness statement (or, if required, affidavit).

Question 6

Serving an interim application

Answer 6

The court may serve the application notice and supporting documentation, but in practice, the applicant’s solicitor usually serves the application notice for certainty and to retain control.

Service must be effected as soon as practicable after the application is filed and not less than 3 clear days before the application is to be heard (CPR 23.7).

This is the general rule and some applications have their own special time limits for filing evidence, for example summary judgment (CPR 24).

The rules on how to calculate time apply to these deadlines

Question 7

Where are interim applications dealt with?

Answer 7

in accordance with the overriding objective, the court may order that a hearing should take place by telephone (23A PD 6 and 7), most commonly if the hearing is expected to last no more than on hour, or exceptionally by video conference.

It is, however, possible for matters to be dealt with in the absence of a hearing if (CPR 23.8):
* The parties have agreed the terms of the order (in which case they should send in a ‘consent order’ – a order in the agreed form, signed on behalf of each party);
* The parties agree there should be no hearing; or
* The court does not consider a hearing appropriate.
Once the court has considered the application, the court will make its decision and the order will be drawn up, sealed and served by the court.

Question 8

When is a ‘without notice’ interim application permitted?

Answer 8

only if (23A PD 3):
(a) there is exceptional urgency (for example, a remedy is needed immediately);
(b) the overriding objective is best furthered by doing so;
(c) all parties consent;
(d) the court gives permission;
(e) a court order, rule or practice direction permits; or
(f) a date for a hearing has been fixed, a party wishes to make an application at that hearing,
and the party does not have sufficient time to serve an application notice.

In this case, the party should still inform the other party and the court (if possible in writing) as soon as possible of the nature of the application and the reason for it.

Question 9

What is an interim payment?

Answer 9

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))

Question 10

What conditions to be satisfied for an interim payment?

Answer 10

-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.

Question 11

What evidence must the application for an interim payment deal with?

Answer 11

• 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; and
• 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.

Any documents in support of the application should be exhibited, including, in personal injuriesclaims, the medical report (25B PD 2.1).

Question 12

Pre-action settlements: Once settlement terms have been agreed, they must be recorded in what way? (3)

Answer 12

1. clearly and accurately recorded in writing, so that the agreement can be enforced if one of the parties defaults.
2. It may be sufficient for the terms to be recorded in an exchange of correspondence,
3. but more complicated settlements should normally be recorded in a formal settlement agreement.

Question 13

If a settlement is concluded after proceedings have started, it is preferable for this to be recorded in what way and why?

Answer 13

in a court order or judgment.

This is so that enforcement proceedings may be commenced to recover any monies due under the settlement (including costs) should the agreement not be honoured.

Question 14

Settlements reached after issue of proceedings: What is a consent order? (2)

Answer 14

1. Where none of the parties is a litigant in person, it will often be possible to avoid an application to the court by drawing up a consent order or judgment for sealing by a court officer. 2. Although in theory the court retains the power not to approve the proposed order, in practice, it will only be referred to a judge if it appears to be incorrect or unclear.

Question 15

The formalities for a consent order are as follows: (3)

Answer 15

1. the order agreed by the parties must be drawn up in the terms agreed;
2. it must be expressed as being ‘By Consent’; and
3. signed by the legal representative acting for each of the parties to whom the order relates.

Question 16

What can only be in a consent order?

Who can inspect a consent order?

Answer 16

Only terms that are within the powers of the court to order may be agreed, for example the payment of a sum of money.

Furthermore, the terms of a consent order are open to public inspection.

Question 17

What is a Tomlin order?

Answer 17

A specialised consent order which is not open to the public and can contain more different terms outside the power of the court

Question 18

Terms contained within the Tomlin order: (5)

Answer 18

1. ‘By consent’ = agreement
2. Stay of proceedings = proceedings are paused
3. Liberty to apply = This provision allows any party to apply to the court for the stay to be lifted and the court can be asked to enforce the settlement if a party does not perform its part of the agreement. The important effect is that new court proceedings do not have to be commenced to enforce the terms.
4. Payment of costs or detailed assessment of costs = must go in order itself
5. signed by the parties’ solicitors

Question 19

Content of an interim application notice: (7)

Answer 19

1. what order is being sought
2. why
3. no requirement to provide evidence but usually included
4. If the issues raised are straightforward, the applicant will complete the box to be found on the second page of Form N244.
5. if there is insufficient space on the form, a witness statement may be filed at the same time
6. the party may also rely on the contents of a statement of case, such as the particulars of claim.
7. verified by statement of truth

Question 20

Evidence in interim application notice: witness statement should: (3)

Answer 20

1. include the factual information and the evidence in support of the application; and
2. anticipate the opponent’s case, where appropriate.
3. attach documents where necessary

Question 21

When must the interim application notice be served on the opponent?

Answer 21

at least three clear days before the court hearing to allow the other party to respond and to object to the application should they wish to do so.

Question 22

What does ‘clear day’ mean? (3)

Answer 22

Exclude:
1. date of service
2. date of the hearing 3. well as weekends and bank holidays.

Question 23

Exceptions to the rule that interim applications should be made with notice: (2)

Answer 23

Example:
1. exceptional urgency
2. the overriding objective of the CPR would be best achieved by making an order without notice.

Applying to freeze opponents financial assets and notice would give them a chance to move the assets

Question 24

If an order is made on an application without notice, the following copy documents must be served on the respondent, as soon as it is practicable to do so: (3)

How long does the respondent have (1) to do what (2)?

Answer 24

1. the court order;
2. the application notice; and
3. any supporting evidence.

The respondent may then apply to set aside or vary the order within seven days of service of the order upon them

Question 25

The general rule is that interim applications with a time estimate of how long will be conducted by telephone?

Answer 25

1 hour or less

Question 26

General rule with interim costs: (3)

Answer 26

1. At the end of any interim application, the judge will decide the issue of costs - often referred to as ‘pay as you go’ litigation.
2. loser pays normally
3. unless conduct of parties or type of issue suggests otherwise

Question 27

Where there is a clear winner what would the interim costs order be?

Answer 27

1. unsuccessful party pays costs
2. These costs are normally summarily (instantly) assessed and ordered to be paid within 14 days.

Question 28

Interim costs order: costs in case: when would this apply?

Answer 28

This could apply if the court makes a conditional order, for example, that the defendant may continue to defend the proceedings but only if they file a full defence within 14 days. If they fail to do so, only then would the claimant receive the costs of the interim application.

Question 29

Interim costs order when outcome is effectively a draw?

Answer 29

Each party is to bear their own costs of the interim application whatever costs orders are made at the end of the proceedings.

Question 30

Rule 24.2 states that the court may give summary judgment on the whole of the claim or a particular issue if: (3)

Answer 30

1. no real prospect of succeeding on the claim;
2. or the defendant has no real prospect of successfully defending the claim;
3. and there is no other compelling reason why the case should be disposed of at trial.

Question 31

What would be compelling reasons for allowing the matter ton proceed to trial rather than giving a summary judgement: (3)

Answer 31

1. The need to allow more time for the matter to be investigated
2. The claim or defence is of a highly complicated and/or technical nature
3. The need to hear from witnesses, particularly if one of the central issues (such as the terms of a contract) is disputed oral evidence.

Question 32

At the hearing where the summary judgement is discussed vs trial

Answer 32

The submissions should be based upon the criteria of Part 24 so the respondent should concentrate on establishing a compelling reason to allow the proceedings to continue and not attempt to argue their case in its entirety. Obtaining an order for summary judgment is not a given and indeed, the easier option may be for the judge to allow the proceedings to continue.

Question 33

What does the claimant (2) and defendant (1) need to prove to get an interim judgement or prevent one?

Answer 33

Claimant:
1. no real prospect of defence
2. no other compelling reason to go to trial

Defendant:
1. need only succeed in preventing the claimant from proving one aspect

Question 34

When is the court’s permission required to apply for summary judgement?

Answer 34

where the claimant wishes to apply before the defendant has filed an acknowledgement of service or a defence.

Question 35

Procedure for filing an application for summary judgement: (4)

Answer 35

1. The applicant applies with Form N244 and (usually) a witness statement in support.
2. respondent given be given at least 14 days’ notice of the hearing date; and
3. file and serve any written evidence at least seven days before the hearing.
4. If the applicant wishes to rely on further evidence, this must be filed and served at least three days before the hearing.