DR3 - Interim application

Question 1

Interim Applications

Should the parties apply to the court straight away for an interim application?

Answer 1

No, parties should seek to resolve the matter between themselves (pursuant to overriding objective)

Unless they do not agree.
* The parties can agree an extension of time to file a defence for up to 28 days
* Must notify the court in writing if they agree
* If they do not agree -you need to notify the opponent (serve notice) that you intend to make an interim application

Question 2

What is the purpose of interim applications?

Answer 2

During the court of litigation, a party may apply to court to ask them to make an order.

Part 23 CPR : General rules regarding applications to the court but express provisions apply to specific types of applications.

Purpose of interim application
1) To ensure compliance with procedural matters
* permission to serve a claim form out of the jurisdiction
* challenging the court’s jurisdiction
* permission to amend a statement of case or to make an additional claim

2) To request more time
* to serve a claim or a defence
* to serve the list of documents

3) To assist in preparation of trial
* requiring a reply to a part 18 request for further information
* seeking disclosure of documents

4) To consider penalties
* applying for a sanction against the opponent for failing to meet a deadline
* applying for relief from a sanction imposed by the court, such as the imposition of a penalty costs order or the striking out of a claim

Question 3

Part 25 - Interim payment

What is an interim payment?

Answer 3

• Amount paid by the defendant to a claimant ‘on account’ of damages, a debt or other sum (excluding costs) before the court has made its final decision at trial.
• Interim payment allows the defendant to make a payment to the claimant earlier than trial, which is then offset against the amount the claimant is awarded.

Example:
Emma is badly injured in an accident that is caused by the negligence of Zach. She commences proceedings against him. The matter is passed to Zach’s insurance company who admit liability for the claim but dispute the amount claimed. Emma’s solicitor agrees with Zach’s insurance company that they will make a voluntary interim payment to Emma in the sum of £45,000, which they do. The matter proceeds to trial and Emma is awarded £75,000 in damages.

How much does Zach’s insurance company need to pay Emma?
As the interim payment of £45,000 was made to Emma before trial, Zach’s insurance company now owe her £30,000 plus any interest payments the court awards. The interest payments will be less than those that would have been payable had the insurance company not made the interim payment, as interest is only payable on sums outstanding.

Question 4

Part 25 - Interim payment

Before making an application for interim payment, what should the applicant do?

Answer 4

Request that the defendant makes a payment voluntarily.

• This is by agreement between the claimant and defendant

If D refuses- then should consider making an application for the court to order an interim payment to be made by the defendant.

Question 5

Part 25- Interim payment

What is the procedure for making an application for an interim payment?

Answer 5

1) The application notice (N244) must be served
* At least 14 days before the hearing
* Supported by evidence
* requesting an order for an interim payment to be made

2) Evidence
* explaining that they believe the Part 25 grounds are satisfied
* amount of the payment being sought
* items or matters in respect of which the interim payment is sought
* likely amount for the final judgement

3) Respondent’s evidence
* If the respondent wishes to rely on written evidence, this must be served at least 7 days before the hearing

4) Applicants evidence
* If the applicant wishes to use evidence in reply, this must be served at least 3 days before the hearing.

Once the court has heard the application, they will decide whether to order that the defendant makes an interim payment to the claimant, and if so how much that is to be. The court will make a costs order.

Question 6

Part 25- Interim payment

What are the grounds the claimant must prove for an interim payment application (Part 25.7 of CPR)?

Answer 6

The claimant must prove one of the following grounds for their application to be successful:

Ground a) Defendant has admitted liability to pay damages
Ground b) Claimant has obtained judgement for damages to be assessed for a sum of money (other than costs)
Ground c) The court is satisfied that if the claim went to trial, claimant would obtain judgement for a
substantial amount of money (other than costs)
* against the defendant from whom they are seeking an order for an interim payment

Ground e) in a claim against two or more defendants

‘would obtain judgement’ – this is a high burden, litigation inevitability involves risk and so the court must be satisfied that the applicant will succeed at trial, not merely that this is likely

Question 7

Part 25- Interim payment

Is it easy or difficult for the claimant to prove the Ground D part of CPR 25.7?

The court is satisfied that if the claim went to trial a claimant would obtain judgement for substantial amount of money (other than costs) against the defendant from whom they are seeking an order for an interim payment

Answer 7

Very difficult to prove.

• Means substantial not negligible in the context of the total claim made.
• If the claimant is applying for an application for an interim payment on the third ground = unlikely the claimant will be successful, unless they have a signficant amount of evidence to show that they will win the case and damages they will be awarded are substantial.
• What is a substantial amount of money in a case where there is a comparatively small claim may not be substantial amount when the claim is for a much larger claim
• It may be that in very small claims an applicant could never satisfy the court that…. the amount of money… would be substantial

Question 8

Interim payment

What is meant by ground E of CPR 25.7?

Answer 8

Two or more defendants

1) The court is satisfied that the claimant would obtain judgement for a substantial amount of money against at least one of the defendants
2) All the defendants are insured or public bodies

Question 9

Part 25- Interim payment

In an application for interim payment, what three things must the claimant’s written evidence contain?

Answer 9

1. Sum of money sought
2. Items and matters in respect of which payment is sought
3. An estimate of the final judgement

Question 10

Interim payment

If the applicant can establish an entitlement to interim payment, what does the court have discretion as to?

Answer 10

1) Whether to make an order
* Court may decline to make an order if the issues are complicated or if a complicated question of law arises
* Significant issues of causation remain at large so that the final amount which will be recovered is uncertain

2) If made, the amount of the order
* Court must not make an interim payment or more than a ‘reasonable proportion of the likely amount of the final judgement’
* Court will also consider what sum the defendant is able to pay - e.g. in case of British and Commonwealth holdings plc - Court of appeal held that an interim payment of £75m when total claim was £100,000m is unecessarily high having regard to the impact this would have on the defendant’s business in the intervening period.

Question 11

Interim payment

What happens if the interim payment exceeds the final judgement payment?

Answer 11

Court will order
* That the outstanding sum is paid back to the defendant
* May award interest on the overpaid amount from the date of the interim payment

The trial judge will not be told about any interim payment order or voluntary payment until after they have determined all issues of liability and quantum, unless the defendant consents. As the purpose of keeping any payment secret is to avoid the trial judge’s decision being influenced in any way, it is difficult to see when a defendant would give their consent.

Question 12

Part 25 - Interim payment

In an application for interim payment in a personal injury context, what additional thing must be attached to the estimate of final judgment and what one additional thing is required in the claimant’s written evidence?

Answer 12

Estimate of final judgement must contain medical reports.

Additional element is a schedule of loss with details of past and future loss and damage

Question 13

Part 25 - Interim payment

When can the interim payment order be made?

Answer 13

• Claimant may not make an application until after the time for acknowledging service.
• Claimant may make more than one application

Question 14

With notice interim application

What is a ‘with notice’ interim application?

Answer 14

These are applications where the applicant gives notice of the hearing to the respondent prior to the relevant court hearing.

Once the applicant has filed the relevant documents with the court, the court will issue the application and send out a notice to the parties informing them of the time and date of hearing.

Question 15

Interim Applications

What is the procedure for an interim application ‘with notice’?

Answer 15

1) Form N244- requests court to make an order or direction and specifies what type of order or direction the applicant would like the court to make
2) Draft order - draft order the applicant would like the court to make (not required in most simple applications PD 23A)
3) Evidence/Affadvait
* For more complex cases = include the factual information and evidence in support of the application and anticipate the opponents case where appropriate / any witness statement

Service:
N244 must be served ‘as soon as practiable after it is filed’ and in any event at least 3 cleardays before the hearing

4) Non-Applicant must serve any evidence they wish to rely upon asap (there is no set timescale for the non-applicant to do this unless the court specifies one).
5) Applicant is then permitted to serve any evidence in response of the non-applicant’s evidence if they wish to do so.

Matter will then proceed to a hearing.

Clear days means that the date of service and the end of the hearing are excluded, as well as weekends and bank holidays.

Question 16

Interim Applications

What 3 things does the applicant has to file and serve on the court within 3 clear days notice of the hearing on the interim application?

Remember day before court hearing does not count

Answer 16

1. N244 form
2. Proposed draft order
3. Evidence
4. Skeleton argument (only if the case is in the High Court)

Skeleton Argument - written document provided to the court in advance of a hearing, which summarises the factual and legal issues involved, the arguments that are being submitted in relation to those issues and any legal authorities that the party will be relying upon

Question 17

With notice

At a interim application hearing, what orders can the court make?

Answer 17

1) Grant the application and make an order
2) Grant direction being sought by the applicant
3) Reject the application.

Question 18

Without notice

What is a ‘without notice’ interim application?

Answer 18

Applicant doesn’t inform the respondent about the application or hearing until the court has already made an order.
* Only allowed in exceptional circumstances
* If urgency requires it

Example : Freezing injunction, where an applicaton has geniune grounds to believe that a respondent will deliberately dispose of their assets to avoid paying a debt. In such cases, giving the respondent notice would defeat the point of the application as it would allow the respondent time to dispose of their assets before the hearing.

Question 19

Without notice

What steps does the applicant take to make an without notice interim application?

Answer 19

1. Applicant must give the court a substantial amount of detail
2. Include evidence as to why notice wasn’t given
3. Provide a witness statement setting out all of the facts (whether they are favourable to the application or not).

The court will then scrutinise the information and evidence they receive carefully before making an order, as the respondent doesn’t have the opportunity to put forward their own arguments.

Question 20

Without notice

If the court grants an interim application (without notice) succesfully, what 4 things must be served on the non-applicant party by the applicant?

When must this be served?

Answer 20

As soon as practicable after the order is issued.

1. The order
2. N244 (Application)
3. Evidence
4. Court order with a brief statement explaining the respondent’s right to have the order set aside within 7 days of it being granted.

Question 21

Without notice

How many days does a respondent have to apply to vary or set aside an order made without notice?

Answer 21

7 days from date order was served on them

Question 22

Without notice

After the applicant has served to the respondent the application, notice, evidence, court order - what can the court do?

Answer 22

Court may also set a date for the matter to return to court for a full hearing with both parties ordering that the injunction remains in place until the date of the next hearing.

Question 23

Without notice

If an interim injunction is granted based on a without-notice application, only when can a party be penalised for not following it?

Answer 23

After they have notice of the order

Question 24

What are consent orders?

Answer 24

• If the parties have reached agreement on the order they require, they can apply to the court to be made by consent without the need for attendance at the hearing.
• Parties must ensure that they provide the court with any material it needs to be satisfied that it is appropriate to make the order (usually a letter will suffice)

Question 25

Costs order

Can an interim application hearings be made via telephone and video conferencing?

Answer 25

• Interim application hearings with an estimate of one hour or less = can be conducted digitally
• Exception - hearing of an application made without notice cannot be conducted digitally

Question 26

Costs order

What is an interim costs?

Answer 26

As the interim application will involve the parties in expense, for example, collecting evidence, preparing the notice of application, supporting witness statements etc.

At the end of the hearing, the judge will decide the issue of costs ‘pay as you go litigation’.

Question 27

Costs order

What are the different cost orders?

Answer 27

1) [Named party’s] Costs
2) Costs in the case
3) No order as to costs

Question 28

When would the [Named party’s] Costs order apply?

Answer 28

• When there is a clear ‘winner’ such as where the claimant succeeds in their application for summary judgment. The
  unsuccessful party would be ordered to pay the costs.

Effect:
* Party named on the order is entitled to their costs of the interim application whatever other costs are made in the proceedings.
* If fixed costs do not apply, these costs are normally instantly assessed and ordered to be paid within 14 days

Question 29

When would the ‘costs in the case’ cost order apply?

Answer 29

• If the court makes a condition order - e.g. 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 - claimant will receive the costs of the interim application

Effect
- order for costs is in the case, no named party at this stage
- neither party can recover their cosrts
- only becomes apparent at the conclusion of the proceedings and ultimate loser of litigation will be liable for these costs.

Question 30

What is a ‘no order as to costs’?

Answer 30

• When outcome of interim application is effectively a draw
• Neither party is at fault
• E.g. evidence later comes to light that requires additional witness statement to be filed

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

Question 31

Summary judgement Part 24

What is the purpose of a summary judgement?

Answer 31

• A party who is on the receiving end of a weak claim or defence to request the court to order that either part of or the whole of the relevant statement of case to be determined
• Examples include delaying tactic and want to prolong matters to increase legal costs and no legal or factual basis for the claim
• Court can decide this without trial
• Therefore facilitates a quick determination of a case - avoiding long-running litigation and save costs where a trial is unnecessary

Question 32

Summary judgement

On what grounds can a summary judgement be bought?

Answer 32

1) The respondent has **no real prospect of succeeding **with the claim or defence AND
2) There must be no other compelling reason why the claim should proceed to trial

NOTE. Applicant must meet both the criteria for the above, meeting one is not sufficient..

Question 33

What is meant by ‘no real prospect of succeeding on or defending the claim’ mean?

Answer 33

• High standard to meet
• Respondent needs a more than arguable case and one that has a real, as opposed to fanciful chance of winning

Application for a summary judgement may be based on:
1) A point of law- respondent has no real prospects of succeeding in his claim
2) Evidence - reasonably be expected to be available at trial, or the lack of it which means the respondent has no real prospects of succeeding
3) Where it clear beyond question that a statement of case is contradicted by all the documents

Question 34

Summary judgement

What is meant by ‘no other compelling reason why the claim should proceed to trial’?

Answer 34

Compelling reasons can include
* Complex facts (court will not allow summary judgement where the facts of the claim are overly complex or technical and require a full hearing)
* Defendant needs more time to investigate the claim made (e.g. no opportunity to do so until now, unable to contact a witness)
* One party holds all the factual cards (unjust to enter judgement without giving the respondent the opportunity to establish a defence in the light of disclosure)
* Questionable conduct by applicant - e.g. claimant is being dishonest or devious

Question 35

Summary judgement

Who has to prove the no real prospect of suceeding with claim / defence and no other compelling reason why the claim shuld proceed to trial?

Answer 35

Claimant applicant has to prove both.

Defendant respondent need only succeed in preventing the claimant from proving one aspect to ensure the dismissal of the application for summary judgement

Question 36

What is the procedure for a summary judgment?

Answer 36

Applicant should serve at least 14 days before the hearing unless this is varied by a practice direction of the court
1. Application notice N244
2. Supporting evidence - witness statement
3. Draft order

Respondent
1. File and serve any written evidence at least 7 days before the hearing

Applicant
1. File and serve any further written evidence (usually evidence that shows that the respondent’s position to be factually or legally incorrect) no later than 3 days before the hearing

Question 37

Summary judgement

When is permission required from the court for an application for a summary judgement?

Answer 37

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

Question 38

Summary judgement

What are the possible orders the judge can order for a summary judgement?

Answer 38

1) Judgement on the claim
2) Dismissal of the claim
3) Dismissal of the application
4) Conditional order

Question 39

Summary judgement

What is a judgement on the claim order?

Answer 39

Where the claimant has brought the application against the defendant.

The court gives judgment in the claimant’s favour as they have met both parts of Part 24 criteria. The claim will therefore not proceed to tral and matter will proceed to enforcement.

Question 40

What is a striking out or dismissal of the application for summary judgement?

Answer 40

Defendant has brought the application against the claimant. Court gives judgement in the defendant’s favour and dismisses the claimant’s claim.

Question 41

What is a dismissal of an application for a summary judgment?

Answer 41

Applicant fails to meet the two-stage test set out in Part 24. The claim will then continue as if the application were never brought.

Question 42

What is a conditional order in a summary judgement?

Answer 42

Where the court orders that the claim can continue but subject to a particular condition being met.

• E.g. claimant has brought an application on the basis that the defendant’s defence has no real prospect of success and there is no other compelling reason why the claim should proceed to trial.
• Despite this, the defendant may have persuaded the court that the prospects of their success could be more than probable at the hearing.
• If this is the case, the court will order that the claim can continue but conditional on the defendant filing a proper defence setting out their legal and factual position within 14 days of the date of the hearing
• Defendant must also need to pay a sum of money into court or take a specified step to ensure the party has a geniune desire and ability to persue the matter and they are not merely delaying payment.

In Joe’s claim against Classic, the judge makes a conditional order. She allows Classic to pursue their defence provided they file and serve a full defence within 14 days of the hearing and pay the sum of £24,000 (the value of the claim) into court within 28 days. If Classic fails to do so, their defence will be struck out and Joe will be able to enforce his claim.

Question 43

Summary judgment

What are the pros of a summary judgment?

Answer 43

1) Successful application will save time and expense of proceeding to trial
2) Application will force the respondent to set out their position at an early stage - help clarify issues
3) Successful applicaton - normally able to recover their costs of the application

Question 44

Summary judgment

What are the cons of a summary judgment?

Answer 44

• Risk of a ‘bloody nose’ if the application fails. Respondent may gain confidence in their defence on the basis that the court has held it to have a ‘real prospect of sucess at trial’
• Unsuccessful applicant - likely to bear both parties costs of the application
• Wasted time

Question 45

What kind of costs can be ordered for a summary judgment?

Answer 45

Summary judgment for specific sum
* The court may award costs and these will be usually fixed

Summary judgment for unspecified sum
* General rule applies - winner (claimant) is granted their costs and loser nothing.
* Fixed for cases on fast and intermediate track
* Summarily assessed for those on multi-track
* Hearing will be listed to assess damages payable by defendant (disposal hearing)

If defendant secures summary judgement so the entire claim is struck out
* Court will normally order that the claimant pays the defendant’s costs of the whole claim, either fixed costs or summarily assessed depending which track the claim is proceeding on

Application is dismissed
* proceedings will continue and the unsuccessful party will pay the successful party’s costs of the summary judgment hearing

Conditional order is made
* Usual order will be for costs in the case

Question 46

Interim injunction

What is an interim injunction?

Answer 46

An order that requires a party to either do something specific or refrain from doing something specific pending full trail taking place.

Question 47

Interim injunction

What is the procedure for an interim injunction (with notice)?

Usually obtained on notice so the defendant has prior warning of the hearing. They last until the trial of the claimant’s action unless they are set aside earlier by the court, perhaps because of the change of circumstances

Answer 47

Same as with interim application

Question 48

Interim injunction

What is the procedure for an interim injunction (without notice)?

Answer 48

Same as with interim application

Question 49

What are the guidelines applied by the court when deciding to grant an application for an interim injunction?

Answer 49

1) Is there a serious issue to be tried?
* Claimant needs to satisfy to the cour that the claim is not imaginary, frivolous or vexatious (i.e. action is being brought only to harass the defendant and does not have a legal or factual basis to it)

2) Would damages be an adequate remedy?
* The court needs to consider whether damages alone would be a sufficient remedy for the claimant and if awarded whether the respondent would be able to pay those damages

3) Where does the balance of convenience lie?
* Court must consider which party would suffer the biggest inconvenience, the claimant if the injunction was not granted or the defendant if the injunction was granted

4) Are there any special factors?
* Court looks at whether the facts of the cas point to any particular factors that would either support granting an application for an injunction or refusing ont

Question 50

Interim injunction

When will a court grant an interim injunction for without notice applications?

Answer 50

1) Due to insufficient time
2) Giving notice would enable the defendant to harm the claimant in some way e.g. destroying evidence that would support the claimant’s case
3) Secrecy is needed - if the defendant learns of the claimant’s plans, they may try to cause harm to the claimant before the injunction can be secured

Question 51

Interim injunction

What are the 2 forms of an injunction without notice can occur?

Answer 51

1) Court may fix a date for a further hearing with all the parties present, in which case it lasts until the date specified for that hearing - If the defendant successfully argues that the injunction should not be granted, it will be set aside
2) Rather than fixing a hearing date, an injunction without notice may simply tell the defendant that they may, if they wish, apply on notice for the order to be varied or set aside. In the meantime, the injunction remains in force until trial or further order

Question 52

Interim injunction

What happens after the court has heard an application for an interim injunction (with notice)?

Answer 52

If the application is on notice and the court awards the injunction, the injunction will last until trial.

Question 53

Interim injunction

What happens after the court has heard an application for an interim injunction (without notice)?

Answer 53

Court will either
1) Grant the injunction temporarily but list the matter for a full hearing with both parties present. Allows the defendant the opportunity to argue the injunction should be set aside
2) Grant the injunction but inform the defendant that they can make an application to set aside the order within 7 days of the order being made.

Question 54

Interim injunction

What are examples of injunctions that can be made without notice?

Answer 54

1) Freezing injunction
2) Search order

Question 55

Interim injunction

What is a freezing injunction?

Answer 55

An order that prevents the respondent of the application from disposing of their assets before the trial.

A respondent would usually do this if they were trying to protect their wealth and assets from being paid or transferred to the applicant in the event of a successful claim.

Question 56

Interim injunction

What is a search order?

Answer 56

An order that allows applicant to enter the premises of the respondent to search for and take copies of evidence, as it believes that the respondent has documents of property belonging to them.

E.g. if notice was given to the respondent in advance, it would be a simple matter for them to hide the items elsewhere.

Question 57

Interim injunction

How must the court be satisfied if it grants a freezing injunction?

Answer 57

The court must be satisfied that the applicant has a good arguable claim and there is a real risk that the respondent will dispose of their assets so as to defeat the enforcement of an eventual judgement

Question 58

Interim injunction

How must the court be satisfied if it grants a search order?

Answer 58

The court must be satisfied that the applicant appears to have a
* strong case
* they will suffer serious harm if the order is not made
* and the respondent has incriminating materials in their possession which cannot be obtained by other means

Question 59

Interim injunction

In what court are no notice injunctions made?

Think these are quite draconian - imagine someone doing a search order in your gaff without telling you or giving notice????

Answer 59

High court.

Question 60

Interim injunction

What kind of evidence is required for no notice injunction claims?

Answer 60

Addidavit.

Sworn/affirmed by the person making it.