DR 3: Interim Applications Flashcards
What are interim applications?
apps made after litigation starts but before trial
Aim of interim applications
to ensure case proceeds as quickly and effectively to trial as possible
Examples of interim applications to ensure youre complying with procedural matters?
- Permission to serve claim form out of jurisdiction
- Challenging courts jurisdiction
- Permission to amend a statement of case
- Permission to make an additional claim
Examples of interim applications to request more time
- To serve a claim form
- To serve a list of documents
Examples of interim applications to assist trial preparation?
- Seek disclosure of docs
- Part 18 request for further info
Examples of interim applications to consider penalties
- Apply for sanction for opponent failing to meet deadline
- Apply for relief from sanction
Form used to make interim applications
N244
What should parties do before making an interim application?
seek to resolve matters between themselves
Where to apply to make an interim application?
court where claim started or has been transferred
What should an interim application include?
- What order is being sought and why
- Evidence on N244 or witness statement (although no specific requirement to provide)
- time estimate of hearing of the application
- Statement of truth
Who should make the witness statement (N244)
person best able to address the relevant points from personal knowledge (may be client or sol)
What should the witness statement include?
- Facts/evidence in support of app
- Anticipate opps case
- Provide sufficient detail to persuade court to make order
What should be attached to the application
- Relevant docs as exhibits if necessary
- Draft of the order sought (except in the most simple of apps)
When should an application notice for an interim application be served on the opponent?
at least 3 clear days before court hearing (ex. Date of service, hearing, weekends, bank hols)
What is a consent order?
□ If parties agree on order required, they can apply for an order to be made by consent without a hearing
□ must provide court with any material it needs to be satisfied its appropriate to make the order (usually letter will suffice)
When can an interim application be made without notice to the other party?
- Exceptional urgency
- The overriding objective of the CPR would be best achieved without notice (ie. Freezing assets/searching premises)
If making an interim application without notice to the other party, what must be done?
□Evidence must explain why notice wasn’t given
□ Applicant has duty of full and frank disclosure=cant take advantage of respondents absence at hearing and must draw courts attention to evidence/arguments they reasonably anticipate the respondent would want to make
If making an interim application without notice to the other party, what must be served on the other party as soon as practicable?
- Court order
- Application notice
- Any supporting evidence
If an order is made following an interim application without notice, wha† can the respondent do?
apply to set aside/vary order within 7d service
When will interim applications be conducted by phone?
With a time estimate of 1h or less (UNLESS without notice)
What possible costs orders can be made at the end of an interim application?
- [named party] costs
- Costs in the case
- No order as to costs
Meaning of ‘[named party] costs’ after an interim application
Named party entitled to their costs within 14d
Applies when theres a clear winner
Meaning of ‘costs in the case’ after an interim application?
Neither party can recover and costs are decided at the conclusion of the proceedings
(eg. where conditional order made)
Meaning of ‘no order as to costs’ after an interim application?
Each party pays own costs (eg. where neither party at fault)
What are the grounds for applying for a summary judgement?
- Party has no real prospect of succeeding in claim/defence
- AND theres no other compelling reason why case/issue should go to trial
(Summary judgement) What are the most common compelling reasons to proceed to trial?
◊ more time for investigation
◊ Highly complicated/technical
◊ hear from witness/expert evidence (particularly if central issue is disputed oral evidence)
(respondent should focus on est compelling reason to go to trial NOT argue complete case)
When/who can make an application for a summary judgement?
By either party
Defendant: at any time
Claimant: After D has filed an acknowledgement of service OR defence (unless has court permission)
When is permission required for applying for a summary judgement?
where C wants to apply before D filed acknowledgement of service or defence
What form is used to apply for a summary judgement?
Form N244 and (usually) witness statement
If a party has applied for a summary judgement, what no ticemust the respondent be given and what should they do?
Be given 14d notice of hearing date
File/serve written evidence at least 7d before hearing
(Summary judgement) If applicant wishes to rely on further evidence, when must this be filed/served?
at least 3d before hearing
Possible orders on application for summary judgement
1) Judgement on claim=claim succeeded, matter proceeds to enforcement
2) Striking out/dismissal of claim-D succeeded
3) Application dismissed=proceed to trial
4) Conditional order=neither side won
When will the court make a conditional order on application for a summary judgement?
Its possible but not probable the claim/defence may succeed
=party can continue with litigation if pay sum of money to court/take specified steps in resolving
Where court dismisses/doesn’t completely dispose of claim after an application for summary judgement, what they do?
Give case management directions usually given as to future conduct of case
What happens with costs if a claimant succeeds in obtaining summary judgement?
Specified sum-court may award costs (usually fixed)
Unspecified sum-winner granted costs
What happens with costs after a defendants application for summary judgement?
Entire claim struck out-C pay D costs of whole claim
Application dismissed-proceedings continue as normal
Who can apply for/be granted an interim injunction
Either party
When can you apply for an interim injunction?
Any time after proceedings commenced
OR before in exceptional cases if court satisfied matter is urgent/its in interests of justice (remains in force until matter comes to trial)
What type of remedy is an interim injunction?
Discretionary remedy when damages not appropriate
Consequences of breach of interim injunction?
punishable as contempt of court
Aim of interim injunction
maintain current position till trial
When deciding if to grant an interim injunction, what will the court determine?
Whether:
1. Serious question to be tried?
2. Damages are an adequate remedy for either side?
3. Balance of convenience lies in favour of granting or refusing?
4. Any special factors
(Interim injunctions) what is a cross undertaking?
If an injunction is granted, applicant must undertake to court to pay any damages to affected party sustained by injunction if it transpires the injunction shouldn’t have been granted
What docs ect are needed to apply for an interim injunction?
- Application notice
- Evidence in support
- (Usually) witness statement
Can you obtain an interim injunction without notice?
Yes if good reason
(eg. Insufficient time/prevent destroying evidence)
What are the 2 forms of injunction without notice?
- Court fixes date for further hearing with all parties present, so lasts until that date and will be set aside if D argue shouldn’t be granted
- It tells D they may apply on notice for order to be varied/set aside and remains in place until trial/further order
Examples of injunctions that can be made without notice?
- Freezing injunctions=prevent removing assets from jurisdiction
- Search orders=Allows respondents premises to be searched by applicant Where app believed they have docs/prop belonging to them
What must the court be satisfied of to order a freezing injunction?
app has a good arguable claim and there’s a real risk respondent will dispose of their assets
What must the court be satisfied of to order a search order?
- App has strong case
- and will suffer serious harm if order not made
- and resp has incriminating materials in their possession that cant be obtained via other means
What is an interim payment?
an advance payment on account of any damages/debt/other sum (EXCLUDING COSTS) that a D may be liable to pay
Who can make an application for interim payments?
Claimant only?
What is the aim of interim payments?
for D with strong case to avoid financial hardship whilst case ongoing
WHEN can a C make an application for interim payment? (as in when in the proceedings)
AFTER time for acknowledging service has expired
AND 1 more during proceedings
Time limit for service of application notice for interim costs?
at least 14 clear days before hearing date
What must evidence for an interim payments application set out?
- Amount requested
- What it will be used for
- Amount likely to be awarded at final judgment
- Reasons for believing the grounds required by the CPR are satisfied
If the respondent wishes to rely on evidence to counter an application for Interim Payments, what are the time limits?
Serve it at least 7d before hearing (App can respond with further evidence at least 3d before hearing)
What are the 3 grounds for establishing entitlement for an interim payment?
- D has admitted liability
- OR C has obtained judgement against D for damages to be assessed or for a sum of money
- OR Court satisfied D would obtain judgment for a substantial amount of money (other than costs) if case went to trial)
When is the only time an application for interim payment is likely to be made?
if there is likely to be a delay in the assessment of damages
Having est entitlement to interim payment, what does the court have discretion in relation to?
a) Should an order for interim payment be made? (if issues complicated, may not)
b) If yes, what should amount be? (will consider contrib neg and counterclaim) -will be a reasonable proportion of final judgement
Will the trial judge be told of an interim payments order?
No until after determined all issued of liability and quantum unless D consents
