Disputes (Interim Applications)

Question 1

What is an interim application?

Answer 1

Applications for orders or directions made to the court, usually in the interim period between commencement of proceedings and trial.

Any party can make an interim application.

Question 2

Who usually hears an interim application in the high court?

Answer 2

Master

However, a high court judge may be necessary for injunctions

Question 3

Who usually hears an interim application in the county court?

Answer 3

District Judge

Question 4

When should an interim application be made?

Should parties ry to agree first etc?

Answer 4

Parties should take a reasonable approach to trying to agree matters to avoid the need for an application.

If it becomes necessary, parties should apply and ‘bunch’ their interim applications to avoid multiple hearings.

Question 5

What is required at Stage 1: Issue an Application Notice

How to make an interim application?

Answer 5

• Form N244 filed by the party making the application (the applicant) to the court in which the main claim is being dealt with, or, is likely to be dealt with (+ court fee)
• Evidence should be provided in one of three ways: (a) in the application notice itself (Part C); (b) referring to the existing statement of case; (c) in a witness statement or affidavit
• Draft Order: should file a draft order the same time.
• Notice: Once filed, court issues the application & provides notice indicating the date and time of the hearing.

Question 6

What is required at Stage 2: Serve the Application

How to make an interim application?

Answer 6

The following must be served on the other party after the application has been issued by the court:

• Application notice
• Court note indicating hearing date/time
• Evidence
• Draft Order

Service must be effected as soon as practicable after the application is filed and not less than three clear days before the application is heard.

Question 7

If the interim application hearing is on Wednesday, 10am, when is the latest time to serve the application on the other party?

Answer 7

Not less than three clear days before the application is heard.

Latest time to serve is Thursday.
T F(1) S S M(2) T(3) W

Question 8

What is required at Stage 3: Produce Further Evidence and File Statement of Costs

How to make an interim application?

Answer 8

• The respondent may wish to file evidence, which must be served promptly.
• A statement of costs should be filed and exchanged no less than 24 hours before the hearing.

Question 9

What is required at Stage 4: Attend Hearing

How to make an interim application?

Answer 9

Most interim applications are dealt with at a hearing, which can be by telephone or video conference if expected to last no more than an hour.

Question 10

What are Without Notice Applications?

Answer 10

An alternative procedure to make an application without serving the application notice on the respondent.

This is permitted only if…..

• There is exceptional urgency
• The overriding objective is best furthered
• The court gives permission
• A court order permits; or
• 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.

Question 11

What are the safeguards for Without Notice Applications?

Answer 11

Where an application without notice is made, the applicant must…

• Explain why no notice is given
  …
• Draw to the court’s attention arguments and evidence in support of the absent respondent’s position
  …
• Serve the respondent as soon as possible after hearing

Question 12

What is the purpose of Summary Judgment?

Answer 12

Summary judgment enables the court to dispose of claims or issues without the need for a full trial

Either party can apply if it considers the other party’s position in relation to the claim or an issue sufficiently weak.

Judgement in default is procedural (e.g. failing to file) whereas the court consider the merits of the case when granting summary judgement.

Question 13

What are the grounds for Summary Judgment?

Answer 13

No real prospect of succeeding on the claim or issue/defending the claim or issue

and

There is no other compelling reason why the case or issue should be disposed of at trial

Question 14

What does ‘No Real Prospect’ mean?

Summary Judgment

Answer 14

No real prospect’ indicates a fanciful or false position.

The respondent only needs to show some chance of success to defeat the application.

Question 15

What are examples of compelling reasons for Summary Judgment?

Summary Judgment

Answer 15

• The defendant needing more time to investigate
• Requiring expert evidence
• Scrutiny of key documents is required
• D has a right to trial by jury (e.g. fraud)

Question 16

Who can apply for Summary Judgment and when?

Answer 16

• The claimant can apply after the defendant has filed an acknowledgment of service
  …
• The defendant can apply anytime after proceedings have commenced.
  …
• The Court can fix a hearing of its own initiative

Question 17

When does service need to be for summary judgment?

Answer 17

At least 14 days before the hearing.

Question 18

When does the respondent in a summary judgement need to serve evidence on the applicant?

Answer 18

At least 7 days before hearing.

Question 19

When does the applicant in a summary judgement need to serve evidence?

Answer 19

At least 3 days before hearing.

Question 20

What are the potential orders in Summary Judgment?

Answer 20

• Dismissal of application
• Dismissal of claim/issue
• Judgment on the claim
• Conditional order allowing respondent to continue under certain conditions.

Question 21

What are Interim Payments?

Answer 21

A payment on account of damages, debt or other sum (except costs) which a defendant may be held liable to pay to a claimant.

• Applications for interim payments are only made by the claimant.
• A claimant may wish to make such an application to assist financially in the interim whilst waiting for settlement/trial.

Question 22

What conditions must be satisfied for Interim Payments?

Answer 22

The court will only make an order where any one of the following are satisfied:

• D admitted liability to pay damages to C
• C obtained judgement against D for damages to be assessed
• The court is satisfied that if the claim went to trial, C would obtain judgement for a substantial amount of money against D from whom he is seeking an order for interim payment.

Question 23

How to make an Interim Payment application?

Answer 23

• Through an Application Notice (Form N244)
• Supporting evidence
• A draft order
• Notice of hearing date, with service and further evidence as necessary.

Question 24

What are the timings for an application for interim payments?

Answer 24

Same as summary judgement timings

• Service 14 days before hearing
• Respondent serve evidence 7 days before hearing
• Applicant serve evidence 3 days before hearing

Question 25

What is the purpose of Security for Costs?

Answer 25

An application made by a person in the position of the defendant (applicant) who is concerned that the claimant (respondent) will not be willing or able to pay defendant costs should the claim be successfully defended.

The court can order security - commonly payment into court so that funds are there to meet costs later.

Note, security for costs relates to costs of the claim, not damages

Question 26

Who can make an application for Security for Costs?

Answer 26

Applications can be made by
* Defendant against a claimant company

• Claimant against a defendant in respect of a counterclaim
• A third party against a defendant.

Note, a claimant can request security of costs unless they are the respondent in a counterclaim (e.g. a defendant of the coutnerclaim themselves) - it is designed for the defendant!

Question 27

What grounds must be satisfied for Security for Costs?

Answer 27

The defendant must show it’s just to make an order and satisfy one or more prescribed conditions:

1. The claimant is not resident in England and Wales, nor are they residence in an EU Member State, Mexico, Singapore and Montenegro.
2. The claimant is a company (not individual!!) and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so. The defendant must show (a) the company’s inability to pay; and (b) the amount of likely costs.
3. The claimant has taken steps in relation to an asset that would make it difficult to enforce and order costs against it.

Additional grounds….
* C has changed address since claim started to evade consequences
* C failed to give an address in the claim form

Question 28

For security of costs, what does the ‘just’ court discretion limb mean?

Answer 28

Even if one of the grounds are met, the court will only grant security if it is satisfied that to do so is just.

The main consideration is the ability of the respondent to comply with a security for costs order.

The court must balance…
* potential injustice of claimant being prevented from continuing the claim if it cannot pay security, with
* the injustice of the defendant being at risk on costs if no security is provided.

Question 29

What is an interim injunction?

Answer 29

An order requiring a party to do or refrain from doing an act, granted temporarily to prevent irreparable harm to the applicant before trial.

Question 30

What types of injunctions are there?

Answer 30

• Prohibitory injunctions (to refrain from an act)
  …
• Mandatory injunctions (to do an act)
  …
• Quia timet injunctions > allows both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed

Question 31

What are the steps for granting an injunction according to American Cyanamid?

Answer 31

1. Is there a serious question to be tried? Court must be satisfied that this is not ‘frivolous or vexatious’

…
2. Are damages an adequate remedy?
…
3. What is the balance of convenience? If damages would be adequate for neither party, the court consider a broad range of factors to ascertain whether granting the interim injunction carries the lesser risk of injustice or not.

Question 32

For interim injunctions, what do the court consider when asking the adequacy of damages question?

Answer 32

(a) An injunction will likely be refused if the applicant can be adequately compensated by damages

(b) However, damages may be inadequate if the respondent has no means of paying them, or the harm caused is irreparable

(c) The court will ask itself whether the respondent could be adequately compensated by the applicant if it transpires the injunction was wrongly granted. If so, the injunction should be granted.

Always remember, injunctions are a discretionary remedy - there is no automatic right even if all the guidelines suggest an injunction should be granted.

Question 33

What is required for an application for interim injunction?

Answer 33

• A court may only grant the injunction if the applicant offers a cross-undertaking to pay damages if it is later held that the applicant ought not to have been granted the interim injunction.
• If the application is made without notice and the injunction is granted, it will be made for a limited period and the court will fix a second hearing called the ‘return date’

Question 34

Can a party ever apply for an interim injunction before a claim form has been issued?

Answer 34

Yes but only in cases of exceptional urgency, if the matter is (i) urgent; or (ii) otherwise desirable in the interest of justice.