Dispute Resolution - Interim Applications

Question 1

Interim application

Answer 1

Any application made which require a judicial decision (e.g. application for unless order)

Question 2

General Procedure

Answer 2

Set out in writing in application notice form (N244)

Should usually be on notice unless good reason notice should not be given (e.g. if giving notice would interfere with purpose of application)

Application should be served as soon as practicable but at least 3 clear days before hearing

Question 3

Application for Summary Judgment

Answer 3

Either party can apply

Asks court to enter judgment for the applicant without proceeding to trial

By Defendant: claimant has no real prospect of succeeding

By Claimant: defendant has no real prospect of successfully defending on claim or issue

AND: there is no other compelling reaon why the case should proceed

Written evidence must be served by Applicant at least 14 days before hearing and Respondent must serve evidence at least 7 days before hearing

If Applicant wishes to respond this evidence must be served at least 3 days before the hearing

Burden of proof on applicant

Question 4

Application for Interim Payment

Answer 4

Order to pay money before case fully determined

One scenario is if defendant has admitted liability

May be ordered when claimant has obtained judgment but sum to be paid not yet assessed

Applicant should invite Respondent to make payment before any application is made

Application cannot be made until the time for filing acknowledgment of service has expired and not less than 14 days before the hearing

Written evidence must be served by Applicant at least 14 days before hearing and Respondent must serve evidence at least 7 days before hearing

If Applicant wishes to respond this evidence must be served at least 3 days before the hearing

Court cannot award an interim payment that is more than a reasonable proportion of the likely amount of the final judgment

Question 5

Injunction

Answer 5

Order for a party to do or to stop doing something

Mandatory injunction: to do something

Prohibitory injunction: to refrain from doing something

A party may apply for an injunction as a final remedy in a case or before trial

Freezing injunction: a type of prohibitory injunction if there is a risk the defendant may dispose of assets or remove them from the jurisdiction. Application must be made to a High Court judge

Search orders: a type of mandatory injunction. Allow applicant on to your premises to preserve evidence - application must be made to High Court judge. Three grounds: 1) strong prima facie case on the merits of the underlying claim 2) D’s activities must cause very serious potential or actual harm to C’s interests 3) clear evidence that property or documents are in D’s possession and may be destroyed

Procedure for applying:

• May apply before proceedings are started - court will then direct applicant to begin proceedings
• Can be made by telephone and out of hours
• Must show that matter is urgent and it is desirable to do so in the interest of justice
• Court has discretion as to whether or not to grant an injunction - will not be granted if damages would be an adequate remedy (e.g. one of a kind painting, damages not adequate)
• Court will sometimes require applicant to give an undertaking so that defendant will be compensated if injunction should not have been granted
• Defendant seeking discharge of injunction must apply on notice

Party in breach can be held in contempt of court