Chapter 8: Interim applications

Question 1

Interim applications

Answer 1

The main CPR which support the content of this section are:
* CPR 23 (in relation to interim applications)
* 23A PD (in relation to interim applications)
* CPR 2.8 (in relation to counting time)
* 44 PD 9 (in relation to statements of cost)

Question 2

1.1 What is an interim application?

Answer 2

Interim applications: 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 3

1.1 What is an interim application?

Answer 3

Alternatively, something more substantial might be at stake, perhaps relating to evidence – one party wanting another party to provide documentation or further information. The court has powers to order a party to do something or
not do something in the period leading up to trial or even to bring the claim to an early end without a trial.

Question 4

1.1 What is an interim application?

Answer 4

Given the varied nature of the potential applications it is perhaps not surprising that ‘interim
applications’ is not a stage in the proceedings. Interim applications can occur at any stage in the
proceedings, including, for certain types of interim application, before the issue of proceedings. In terms of the rules governing interim applications, there are rules that apply to interim applications generally. Think of these as default rules, setting out the process for making an interim application, such as what needs to be filed at court and when.

Question 4

1.1 What is an interim application?

Answer 4

These general rules are then modified / supplemented by additional rules for particular types of application.
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

Question 5

1.2 Procedure

Answer 5

In accordance with the overriding objective, parties should take a reasonable approach to trying
to agree matters to avoid the need for an application to court, or to make such an application less
contentious. However, as soon as it becomes apparent that it is necessary or desirable to make an application, the party should apply (23A PD 2.7).

Some applications could be dealt with at the same time as the case management conference or, if
closer to trial, at the pre-trial review. Parties are under a specific obligation to ‘bunch’ their interim applications (23A PD 2.8). If a
hearing has been fixed for whatever reason, it is up to the parties to issue any necessary
applications to ensure that outstanding matters get dealt with at a single hearing wherever
possible.

Question 6

1.2.1 Issuing the application

Answer 6

The party making the application, whether or not they are the claimant or defendant in the
proceedings, is called the applicant. The other party is the respondent.
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.

Question 7

1.2.1 Issuing the application

Answer 7

A court fee is payable to issue the application notice. 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 (CPR 23.2). Sometimes the CPR provides that a particular type of application must be supported by particular evidence. However, even in cases where evidence is not strictly required, it is advisable to provide evidence (23A PD 9.1), in order to satisfy the court that the order sought should be granted.

Question 8

Evidence can be given in one of three ways:

Answer 8

• 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 9

1.2.1 Issuing the application

Answer 9

The applicant should also file a draft order at court setting out the terms it is seeking.
The applicant takes or sends to the court the application notice, evidence and draft order. The
court issues the application and provides a notice indicating the date and time that the
application will be heard by the court.

Question 10

1.2.2 Serving the application

Answer 10

The application notice, note from the court indicating the date and time of the hearing, evidence
and draft order must be served on the other party after the application has been issued by the
court (CPR 23.7).

Question 11

1.2.2 Serving the application

Answer 11

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 three 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 (CPR 2.8).

Question 12

1.2.3 Further evidence

Answer 12

The respondent may wish to file evidence in the form of a witness statement (or, if the CPR require
it, an affidavit). This evidence must be filed and served as soon as possible (23A PD 9.4) and in
accordance with any specific timings stated by the court when it issued the application notice.

Question 13

1.2.3 Further evidence

Answer 13

If the applicant wishes to bring further evidence in reply to the respondent’s evidence, this must be filed and served as soon as possible (23A PD 9.5) and in accordance with any specific timings stated by the court.
A statement of costs in relation to the application should also be filed and exchanged not less than 24 hours before the hearing (44 PD 9.5)

Question 14

1.2.4 Hearing

Answer 14

Most interim applications are dealt with at a hearing. 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):

Question 15

1.2.4 Hearing

Answer 15

• 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 16

1.3 Without notice applications

Answer 16

(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 17

1.3.1 Without notice hearings - procedural safeguards

Answer 17

To mitigate the risks of unfairness in making an application without notice:
(a) The application must explain why no notice is given;
(b) The applicant must draw to the court’s attention arguments and evidence in support of the
(absent) respondent’s position.
(c) The applicant must serve the respondent as soon as possible after the hearing, whether or
not the court has granted the relief sought. The documents the applicant must serve on the
respondent are:
- The application notice
- The evidence in support
- The order

Question 18

1.3.1 Without notice hearings - procedural safeguards

Answer 18

(d) The court order must contain a statement of the respondent’s right to make an application to
set aside or vary the order. Any application to set aside must by made within 7 days of the
order being served on the other party (CPR 23.10).

Question 19

1.4 Summary

Answer 19

• 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’

Question 20

1.4 Summary

Answer 20

• 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.

Question 21

1.4 Summary

Answer 21

• 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 22

2 Interim payments
2.1 What is the purpose of interim payment?

Answer 22

Interim payment: 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 23

2.1 What is the purpose of interim payment?

Answer 23

A claimant may wish to ask for an interim payment to assist it financially in the interim period
prior to settlement/trial, for example, in a personal injury claim. Any payment would be made on
account of damages. Note that an application for interim payments is made by the claimant

Question 24

2.2 Conditions to be satisfied

Answer 24

The court will only make an order where any of the following conditions are satisfied:
* 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 25

2.2 Conditions to be satisfied

Answer 25

There are also two further conditions relating to cases where the claimant is seeking an order for
possession of land or where the claimant is seeking an order in a case where there are two or
more defendants, but these are beyond the scope of this section

Question 26

2.2.1 Evidence

Answer 26

The applicant must provide evidence alongside its application. The evidence must deal with 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;

Question 27

2.2.1 Evidence

Answer 27

• 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 injuries
  claims, the medical report (25B PD 2.1).

Question 28

2.3 Procedure

Answer 28

A claimant seeking an interim payment would make a request for a voluntary payment from the
defendant first. If the defendant does not agree, for example if it is defending the claim, the
claimant would make an application to the court for an interim payment (CPR 25.7)

Question 29

2.3 Procedure

Answer 29

Although the claimant can make a request to the defendant for a voluntary interim payment at
any stage in the proceedings (including pre-action), the claimant cannot apply to the court for an
interim payment before the end of the period for the defendant filing an acknowledgment of service (CPR 25.6(1)).

Question 30

2.3 Procedure

Answer 30

The claimant can make more than one application for an interim payment order. If the claimant applies for an interim payment, then the normal rules relating to interim applications apply (see the section relating to interim applications) subject to modifications / additional requirements set out below where the text struck through, in red, shows the ‘normal’ rules

Question 31

2.3 Procedure

Answer 31

The court must not make an interim payment of more than a reasonable proportion of the likely
amount of the final judgment, taking into account any contributory negligence, set-off or counterclaim – (CPR 25.7). It may order payment in instalments.

Question 32

2.3 Procedure

Answer 32

The court must not make an interim payment of more than a reasonable proportion of the likely
amount of the final judgment, taking into account any contributory negligence, set-off or
counterclaim – (CPR 25.7). It may order payment in instalments.

Question 33

2.3 Procedure

Answer 33

Unless the defendant agrees, an interim payment made by a defendant in the course of the
proceedings (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 34

2.4 Summary

Answer 34

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 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.

Question 35

2.4 Summary

Answer 35

• 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 36

3 Security for costs

3.1 What is the purpose of security for costs?

Answer 36

Security for costs: An application made by a person in the position of defendant (the applicant) who is concerned that the claimant (the respondent) will not be willing / able to pay the defendant’s costs should the claim be 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.

Question 37

Note that security for costs relates solely to the costs of the claim, not the level of damages which
may be awarded. An application can be made:

Answer 37

• By a defendant against a claimant (which is the usual case)
• By a claimant against a defendant in respect of a counterclaim
• By a third party against a defendant in respect of an additional claim (CPR 20)

Question 38

3.2 Grounds for security for costs

3.2.1 Grounds

Answer 38

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

Question 39

3.2.1 Grounds

Answer 39

As with any interim application, the court will also consider the overriding objective and, therefore,
whether it would be dealing with the case justly and at proportionate cost by making a security
for costs order. We will consider the conditions first before moving on to what is ‘just’.

Question 40

3.2.2 Conditions

Answer 40

The prescribed conditions for security for costs are:
* The claimant is resident out of the jurisdiction (but is not resident 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 in relation to its assets that would make enforcement of a costs
order against it difficult (CPR 25.13(2)(g))

Question 41

3.2.2 Conditions

Answer 41

• The claimant has changed address since claim was commenced with a view to evading the consequences of the litigation (CPR 25.13(2)(d)).
• The claimant failed to give an address in the claim form (CPR 25.13(2)(e)).
• 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)).
  Let’s look at three of the prescribed conditions for security for costs in more detail.

Question 42

‘Claimant resident out of the jurisdiction’ condition

Answer 42

Meaning of resident:
* For an individual this is their habitual or normal residence.
* For a company this is where the company’s central management and control is exercised and
it is usually, but not necessarily, where it is incorporated.

Question 43

Meaning of out of the jurisdiction:

Answer 43

Essentially, this means not in England and Wales. The rationale for this requirement is that 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 under this ground if the claimant is resident in a state
bound by the 2005 Hague Convention, which at the time of writing includes the UK, all EU
members states, Mexico, Singapore and Montenegro. This is because there are some (albeit
limited) reciprocal arrangements between these states which would ease the enforcement of a
costs order. This is a recent (ie post-Brexit transition period) change.

Question 44

‘Impecunious claimant company’ condition

Answer 44

The defendant must show: a) The company’s inability to pay costs; and b) the amount of the likely
costs. The defendant must show the company ‘will be unable’ (as opposed to ‘may be unable’) to pay its debts when the order is made against it. However, the defendant does not have to show on a
balance of probabilities that the claimant company is unable to pay

Question 45

‘Impecunious claimant company’ condition

Answer 45

The defendant may be able
to show that there is ‘reason to believe’ that the claimant company will be unable to pay even if
the claimant company can adduce substantial evidence to the contrary (Jirehouse Capital v Beller [2008] EWCA Civ 908). This makes security for costs more available for defendants.

Question 46

‘Claimant moving assets’ condition

Answer 46

The purpose of this condition is to prevent injustice to a defendant where the assets available to
enforce any order for costs have been or are being put beyond the reach of enforcement, for
example, the dissipation of assets, the transfer overseas or into the names of third parties or the
transfer to places unknown to the defendant.

Question 47

3.2.3 The court’s discretion

Answer 47

Even if one of the prescribed conditions is made out, the court is not obliged to give security;
security will only be granted by the court if: it is satisfied, having regard to all the circumstances of the case, that it is just to make such an
order.

Question 48

Main consideration

Answer 48

The main consideration that the court will take into account is the ability of the respondent to
comply with any order for security for costs. The court should not normally make the continuation
of a claimant’s claim dependent on a condition which it is impossible for the claimant to fulfil,
because this effectively restricts the claimant’s access to the justice system. An impairment of a
claimant’s right of access which is disproportionate to the need to protect the defendant is likely
to be a breach of Article 6 ECHR (right to a fair trial).

Question 49

Main consideration

Answer 49

The court has the difficult task of balancing the potential injustice to the claimant in being prevented from carrying on with the claim if it
cannot pay the security as against the injustice of the defendant being at risk on costs if no security is provided. This is likely to be particularly problematic where the basis for the application is the claimant’s impecuniosity.

Question 50

Other considerations

Answer 50

Apart from the ability to comply with the order, the court will look at other factors (Sir Lindsay
Parkinson v Triplan [1973] 2 All ER 273). For example, admission of liability by the defendant or
substantial open offers (those the court can be made aware of) will make the defendant’s application less likely to succeed. Delay also makes the application less likely to succeed – the application should be made promptly, as soon as the facts underpinning the application are known.

Question 51

Other considerations

Answer 51

A claim which appears not to be genuine, or which has little prospects of success, will make the defendant’s application more likely to succeed. If the defendant has itself been responsible for the claimant’s financial difficulties, this will make the application less likely to succeed.

Question 52

3.3 Procedure

Answer 52

If a party applies for security for costs, then the normal rules relating to interim applications
apply (see the section relating to interim applications). In addition, note that the application notice should state which ground(s) or enactment applies. The application must be supported by written evidence (CPR 25.12(2)). Evidence will normally be given by way of witness statement which should cover:

Question 53

3.3 Procedure

Answer 53

The ground eg for the impecunious company ground, the witness statement is likely to exhibit the accounts to show the claimant is unable to pay
* The factors in the exercise of the court’s discretion
* The likely costs to trial eg the witness statement is likely to exhibit a statement of costs or to
refer to an approved costs budget
* The amount of security requested.

Question 54

3.3.1 Amount of security

Answer 54

If the court makes an order for security for costs it will determine the amount of security as well as
the manner in which and the time within which the security is given (CPR 25.12(3)). The amount is
entirely within the court’s discretion and the court will fix a sum it thinks just taking into account:

Question 55

3.3.1 Amount of security

Answer 55

• The amount of the defendant’s likely costs
• The security can be for the whole action or up to a point in time eg up to disclosure
• The amount can cover costs incurred (including pre-action) and future costs
• A deduction can be made for the likely reduction upon assessment of costs or the possibility of
  settling
• Other factors eg delay may mean that security is not given for costs already incurred but is given for future costs.

Question 56

3.3.2 Type and timing of security

Answer 56

The manner in which security is given can be:
* 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 required date.

Question 57

3.4 Summary

Answer 57

• 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.

Question 58

3.4 Summary

Answer 58

• 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 59

4. Interim injunctions

4.1 What is the purpose of an interim injunction?

Answer 59

Injunction: 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, so breach can result in a fine and/or imprisonment.

Question 60

4.1 What is the purpose of an interim injunction?

Interim injunction:

Answer 60

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 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. It is usually made in circumstances of urgency and lasts until trial or further order.

Question 61

Perpetual injunction:

Answer 61

A final injunction (usually made at trial) that continues with no limitation of time. These are not covered in this section.

Question 62

4.2 Types of interim injunction
Prohibitory injunction

Answer 62

Requires the respondent to refrain from doing an act eg An employer has brought a claim against an employee for breaching a confidentiality clause in an employment contract. The employer obtains an interim
prohibitory injunction preventing specified uses of information pending trial.

Question 63

Mandatory injunction

Answer 63

Requires the respondent to do a specific act eg In a claim alleging that a supplier of computer software 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 up pending trial.

Question 64

Quia timet injunctions

Answer 64

Allow both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed eg In a claim alleging that the threatened closure of a bank account would be a breach of statutory duty, the customer obtains an interim
mandatory injunction requiring the bank to keep the account open

Question 65

4.3 Guidelines

Answer 65

An injunction may be granted where it is just and convenient (s.37 of the Senior Courts Act 1981). In American Cyanamid Co v Ethicon Ltd [1975] AC 396, Lord Diplock laid down guidelines, now known as the ‘American Cyanamid guidelines’, on how the court should exercise its discretion to
grant an interim injunction. The following summary will be considered in more detail below.

Question 66

4.3.1 Step 1: is there a serious question to be tried?

Answer 66

An injunction is not a cause of action - it is a remedy. Therefore, an applicant cannot sue for an
injunction. The applicant must have a pre-existing cause of action.
The court must be satisfied that this is not “frivolous or vexatious” and that “there is a serious
question to be tried”. In many cases, this is not a difficult hurdle to surmount. However, if this test
cannot be met, the injunction will generally be refused (and the court will not go on to consider steps 2 and 3).

Question 67

4.3.2 Step 2: would damages be an adequate remedy for a party injured by the court’s
grant of, or failure to grant, an injunction?

Answer 67

When considering the adequacy of damages, the court will firstly consider the issue from the
applicant’s perspective and, depending on the outcome of this analysis, the court might then go
on to consider the same issue from the respondent’s perspective:

Question 68

Step 2(a) – applicant’s perspective

Answer 68

The court will generally refuse an injunction if the applicant
could be adequately compensated by damages for any loss caused by the refusal to grant an interim injunction. However, damages may be inadequate if the respondent has no means of paying them or the harm being caused is irreparable, cannot be quantified, or is serious and likely to continue.

Question 69

Step 2(b) – respondent’s perspective

Answer 69

If an injunction is granted, the respondent is going to be prevented from doing something, or required to do something, until trial – but it might transpire that the injunction should never have been granted, most likely if the applicant fails at trial. The court will ask itself whether the respondent could be adequately compensated by the applicant if it transpires that the injunction was wrongly granted. If so, then this suggests the injunction should be granted.

Question 70

4.3.3 Step 3: the balance of convenience

Answer 70

If it appears that damages would be adequate for neither party, then the court will consider a very broad range of factors to try to ascertain whether granting or not granting the injunction carries the lesser risk of injustice ie to ascertain where the ‘balance of convenience’ lies.

Question 71

4.3.4 Equitable and discretionary

Answer 71

The guidelines just stated should be considered in the context of an injunction being an equitable remedy, so equitable principles apply, including that;
(a) An injunction will not be obtained when it would serve no practical purpose;
(b) The court might refuse to grant an injunction if the applicant has not come to court with
‘clean hands’
(c) Excessive delay may lead to a refusal of the application.

Question 72

4.3.4 Equitable and discretionary

Answer 72

An injunction is also a discretionary remedy: there is no automatic right to an injunction just because all the ‘guidelines’ have been met.
An application for an interim injunction must be supported by written evidence setting out the
facts to justify the relief sought (CPR 25.3(2)), keeping in mind the guidelines and considerations
set out above. In addition, if the application is made without notice, the evidence must state the reason why notice has not been given (CPR 25.3)

Question 73

4.4 Procedure

Answer 73

An application for an interim injunction is an interim application so the starting point is that the
procedure is the same as any for any other interim application (see the section relating to interim
applications). However, because an interim injunction is a form of interim remedy (CPR 25.1(a)),
and one with potentially very serious consequences, there are some additional procedural
considerations.

Question 74

4.4.1 Undertakings

Answer 74

A court will often decide to grant an interim injunction only if the applicant offers an crossundertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction -
for example, if proceedings are discontinued, or the injunction is discharged before trial, or if it is
decided at trial that the applicant had not been entitled to restrain the respondent from doing what it was threatening to do.

Question 75

4.4.1 Undertakings

Answer 75

The cross-undertaking is made to the court. It is there for the protection of the respondent, but
the court can also require (as a condition of granting the injunction) an undertaking to be given for the protection of any other person who may suffer loss because of the order (25A PD 5.1 and 5.2).

Question 76

4.4.2 Without notice safeguards

Answer 76

The application for an interim injunction can, like any interim application, be made without notice
if this is justified. If the application is made without notice and the injunction is granted, it will be granted initially for a limited period only and the court will fix a second hearing called the ‘return date’. The respondent will be given notice of that hearing and the opportunity to attend it to make representations, and at that second hearing, the court can make the following orders:

Question 77

4.4.2 Without notice safeguards

Answer 77

• Maintain order (to keep the injunction in place until the trial of the substantive matter).
• Discharge the injunction vary the terms of the injunction.
• Enforce the applicant’s undertaking in damages if it transpires that the injunction should not have been granted.
• Accept an undertaking by the respondent not to do the acts in question, in place of the
  injunction

Question 78

4.4.2 Without notice safeguards

Answer 78

In the case of a without notice application, the applicant must make full and frank disclosure of all
matters of fact or law relevant to the application – including those which are or may be adverse to
the applicant. This is required for any interim application made without notice, and its importance
is particularly pronounced when something as important as an interim injunction is at stake.

Question 79

4.4.2 Without notice safeguards

Answer 79

The applicant’s legal representatives must prepare a full note of the hearing as soon as possible and this should also be served on the respondent (and any other party affected by the order)
without delay. The full note of the hearing ensures the respondent knows what case they have to
meet at the next, with notice, hearing.

Question 80

4.4.3 Applications before a claim is issued

Answer 80

In cases of exceptional urgency, not only can a party apply for an interim injunction without notice but a party can apply before a claim form has even been issued.
The court will only grant an interim remedy before a claim has been issued if the matter is (CPR 25.2(2)(b)):
* Urgent; or
* It is otherwise desirable to do so in the interests of justice.
In these circumstances, the applicant must undertake to the court to issue a claim form immediately.

Question 81

4.5 Summary

Answer 81

• 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:

Question 82

4.5 Summary

Answer 82

• 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.

Question 83

5 Summary Judgment
5.1 What is the purpose of summary judgment?

Answer 83

Summary judgment: Enable the court to dispose of claims or issues without the need for a full trial (CPR 24.1).
If summary judgment is granted on an issue, that issue is no longer considered at trial. This saves costs. Summary judgment furthers the overriding objective because it allows the court to deal with weak cases or issues proportionately and expeditiously.
Either party can apply for summary judgment if it considers that the other party’s position in relation to the claim or particular issues is sufficiently weak.

Question 84

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

Answer 84

There is considerable overlap between the two provisions. Many cases fall within both strike out (CPR 3.4) and summary judgment (CPR 24). It is often appropriate for a party to combine these
two applications.

Question 85

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

Answer 85

The court can strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim (CPR 3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (CPR 3.4(2)(b)) (there
are also other grounds for strike out). The court may give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on their claim or defence (CPR 24.2).

Question 86

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

Answer 86

Judgment in default can be the consequence of the defendant failing to respond to a claim. Judgment in default is therefore procedural: if a defendant fails to file an acknowledgment of
service and/or a defence in accordance with the CPR time limits, the claimant can obtain judgment in default by either request or application (depending on the nature of the claim). The court does not consider the merits of the case when ordering judgment in default.

Question 87

5.2 Grounds for summary judgment

Answer 87

What must be established in order for the court to dispose of a claim or issue without the need for a trial?
The grounds for summary judgment are (CPR 24.2

Question 88

What does ‘no real prospect’ mean?

Answer 88

It means the position is fanciful, imaginary or false. To defeat the application, the respondent does not have to show that its case will probably
succeed; just some chance even if it is improbable. The word real means more than merely arguable.

Question 89

Examples of compelling reasons:

Answer 89

• Defendant needs more time to investigate
• Expert evidence is required
• Multi-party litigation
• Scrutiny of key documents is required
• Defendant has a right to trial by jury eg fraud (this is not an exhaustive list)

Question 90

5.2.1 The evidence required

Answer 90

The evidence supporting an application for summary judgment must address the grounds set out above.
The application notice or supporting evidence (usually a witness statement) must also:
* Identify concisely any point of law or provision in a document on which the applicant relies;
and
* State the application is made because the applicant believes that on the evidence the respondent has no real prospect of success and knows of no other compelling reason why the
claim / issue should be disposed of at trial.

Question 91

5.3 Procedure
5.3.1 Who can apply and when?

Answer 91

The claimant can apply for summary judgment after the defendant has filed an acknowledgment of service or defence (or earlier with the court’s permission) (CPR 24.4). The defendant can apply any time after proceedings have commenced. The court can fix a hearing of its own initiative (CPR 1.4(2)(c) and CPR 3.3).

Question 92

5.3.1 Who can apply and when?

Answer 92

Ideally, the claimant or defendant should apply for summary judgment either before or at the same time as filing the Directions Questionnaires to avoid incurring unnecessary costs (26 PD 5.3(1)). If the application is made on filing Directions Questionnaires, the court will delay allocating the matter to a track until after the summary judgment hearing.

Question 93

5.3.1 Who can apply and when?

Answer 93

The claimant can apply for summary judgment after the defendant has filed an acknowledgment of service or defence (or earlier with the court’s permission) (CPR 24.4). The defendant can apply any time after proceedings have commenced. The court can fix a hearing of its own initiative (CPR 1.4(2)(c) and CPR 3.3).

Question 94

5.3.1 Who can apply and when?

Answer 94

Ideally, the claimant or defendant should apply for summary judgment either before or at the same time as filing the Directions Questionnaires to avoid incurring unnecessary costs (26 PD 5.3(1)). If the application is made on filing Directions Questionnaires, the court will delay allocating the matter to a track until after the summary judgment hearing.

Question 95

5.3.1 Who can apply and when?

Answer 95

If the claimant fails to comply with a relevant pre-action protocol, the application for summary judgment by the claimant will not normally be considered before the defence has been filed or time for doing so has expired (24 PD 2(6)). The effect of a summary judgment application is to create a pause in the proceedings while the
application is being decided so that:

Question 96

5.3.1 Who can apply and when?

Answer 96

The effect of a summary judgment application is to create a pause in the proceedings while the application is being decided so that:
* If the claimant applies for summary judgment before the defendant has served a defence, the time for the defendant to file a defence is extended until after the hearing (CPR 24.4(2)).
* If the defendant applies for summary judgment, the defendant does not have to file either an acknowledgement of service or a defence until after the summary judgment hearing.

Question 97

5.3.1 Who can apply and when?

Answer 97

If a party applies for summary judgment, then the normal rules relating to interim applications apply as set out at the beginning of the chapter subject to the modifications / additional requirements shown on the diagram.

Question 98

5.3.2 The application notice

Answer 98

The application notice must:
* Include a statement that it is an application for summary judgment under Part 24; and
* Direct the respondent’s attention to the CPR which require the respondent to file and serve any evidence at least seven days before the summary judgment hearing (24PD 2).
These provisions make it clear to the respondent what is at stake in the application and how the respondent can oppose the application. This is particularly important because an application for summary judgment has particularly significant potential consequences.

Question 99

5.3.3 Potential orders at the summary judgment hearing
Dismissal of the application

Answer 99

The application fails. The issues must continue to trial. The court will give directions to take the claim forward.

Question 100

Dismissal of the claim

Answer 100

If the defendant applies for summary judgment and succeeds, the claim is dismissed. The defendant has ‘won’.

Question 101

Judgment on the claim

Answer 101

If the claimant applies for summary judgment and succeeds, then judgment is entered for the claimant: the claimant has ‘won’.

Question 102

Conditional order

Answer 102

The judge has decided that the respondent may succeed but it is improbable that it will do so:
the court will refuse summary judgment and allow the respondent to continue only subject to conditions ordered by the court, such as paying a sum of money into court.

Note. The potential orders assume the application related to the whole claim. It could relate only to specific issues, in which case the same principles apply to the issue concerned.

Question 103

5.4 Summary

Answer 103

• 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.

Question 104

5.4 Summary

Answer 104

• 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.