G. Interim Applications Flashcards
What are interim applications?
Made before issue of CF and before trial.
What should a party do if they want to make an interim application?
Usually should inform court when they file directions questionnaire. In multi track, most interim claims are heard in CMC.
What are C & D called in interim applications?
C = applicant (should convince court to grant interim remedy)
D = respondent
What are the general rules used for?
ANY application incl interim applications.
These are simple applications like:
- application to serve a CF outside jurisdiction
- request for more time
- amending statement of case
What are the general rules?
- app made with app notice
- app notice filed with court where claim started.
- app notice states what order applicant seeking and why
- applicant to attach draft order to app notice = assist judge who will issue actual order- draft makes it easier
- applicant need to provide evidence supporting application
- app notice + evidence + draft order served on respondent ASAP after it’s been filed.
- Check if application is made with notice or without notice.
What is a with notice application?
Notice given to o/s that you made application
App notice + w/s or affadavit must be served on o/s ASAP i.e. at lease 3 clear days before hearing
Also serve draft order at same time as serving notice + w/s or affadavit
What is a without notice application?
No notice served on o/s that an application has been made.
Only done in extreme urgency e.g. freezing injunction & where secrecy needed. Prevents respondent from doing anything before injunction granted.
What will be served on o/s in a without notice application?
Copy of order
app notice
w/s or affadavit (affadavit used for search orders/ freezing injunctions)
Order contains details on:
- if there’s a hearing to determine whether to allow injunction to continue or not
- if no hearing, how o/s can appeal to dismiss injunction which they have 7 clear days to do
If a party makes an interim application without notice erroneously, what type of order will the court dismiss it with, and what is the effect of this?
A wasted costs order, which requires the solicitor to pay the other side’s costs to the extent associated with the application
What is the difference between default judgment and summary judgment?
Default judgment: Defendant has failed to acknowledge service or file a defence on time, not related to strength of defence
Summary judgment: Other party has weak case and there’s no other reason to have the trial
What are the two criteria which the applicant must satisfy when applying for summary judgment?
Before when can the claimant not make an application for summary judgment?
- Other party has no reasonable prospect of success, either their claim or defence, and
- No other compelling reason why the case should proceed
In an application for summary judgment, what are the three time periods before the hearing before which:
(1) Applicant must serve written evidence in support of the application on the other party
(2) Other party must serve evidence in response, and
(3) Applicant must serve any further evidence in response to (2)?
- 14 days
- 7 days
- 3 days
Same for interim payments
Orders under summary judgment
- Judgment on claim- C wins (if C applicant), case over
- Strike out/dismissal = D wins (if D applicant), case over
- Application dismissed = applicant fails, case proceeds.
- Conditional order - applicant partly wins but court believes respondent has chance of winning. Case continues but respondent pay sum to court/do something specific. If D denies, then case ends.
What is an interim injunction?
Prevent someone from doing something that would damage applicant or their case.
Grounds for Interim injunction
- There is a serious question to be tried
- Damages not adequate (therefore applicant must use injunction) or D can’t pay damages and
- Granting an injunction would cause less harm to D than not granting one (balance of probabilities)
- Relative strength of case
Consider overriding objective i.e. fair, cost-effective & speedy for all parties
Applicant can offer an undertaking in damages. If injunction shouldn’t have been granted applicant promises to compensate o/s.
Procedure for interim injunction
Make application anytime incl before CF issued (if urgent)
Can be made by either party- D can only make application after AoS served or defence
Either with/without notice = app notice + draft order + evidence (w/s or affadavit) - served at least 3 clear days before hearing
Freezing order
Stopping someone from moving assets abroad.
- Good case
- Assets in UK
- Risk of removal
Search order
Respondent hiding docs important to case.
- Strength of case
- Defendant’s activities cause very serious potential or actual harm to the claimant’s interest, and
- Clear evidence that D has crucial docs to the trial and there is a real possibility the material may be destroyed
At which court can freezing orders and search orders only be made?
What is needed as evidence?
If a without notice injunction is made…
High Court
Requires affadavit as evidence
the applicant must give ‘full and frank disclosure’
Interim payment
- Submit AoS/defence
- Explain what the payment will be used for
- Request a specific sum (get voluntarily first)
- Show the sum is a reasonable proportion of the likely damages
- Consider contributory negligence, etc.
- D has admitted liability; or
- C has won the case and obtained judgment for damages yet to be assessed or
- The court is satisfied that, if the case went to trial, C would win.
Under interim applications who determines the amount payable by D
Court. Reasonable sum of likely damages- D should be able to pay it
When is permission sought for an appeal against an interim order?
at the interim hearing or 21 days of the decision
If permission sought at original hearing and denied, permission may be sought from appeal judge.
Can a party appeal a decision for interim order?
Yes, get permission to appeal and only granted if real prospect of success/ some other compelling reason.
What to note in appeal against interim order?
No new evidence submitted unless ordered otherwise.
original decision reviewed.
original decision = unjust/ wrong/ procedural irregularity = appeal upheld
Court has wide ranging powers if appeal successful (can set aside/ re-hearing)
