G. Interim Applications

Question 1

What are interim applications?

Answer 1

Made before issue of CF and before trial.

Question 2

What should a party do if they want to make an interim application?

Answer 2

Usually should inform court when they file directions questionnaire. In multi track, most interim claims are heard in CMC.

Question 3

What are C & D called in interim applications?

Answer 3

C = applicant (should convince court to grant interim remedy)

D = respondent

Question 4

What are the general rules used for?

Answer 4

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

Question 5

What are the general rules?

Answer 5

1. app made with app notice
2. app notice filed with court where claim started.
3. app notice states what order applicant seeking and why
4. applicant to attach draft order to app notice = assist judge who will issue actual order- draft makes it easier
5. applicant need to provide evidence supporting application
6. app notice + evidence + draft order served on respondent ASAP after it’s been filed.
7. Check if application is made with notice or without notice.

Question 6

What is a with notice application?

Answer 6

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

Question 7

What is a without notice application?

Answer 7

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.

Question 8

What will be served on o/s in a without notice application?

Answer 8

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

Question 9

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?

Answer 9

A wasted costs order, which requires the solicitor to pay the other side’s costs to the extent associated with the application

Question 10

What is the difference between default judgment and summary judgment?

Answer 10

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

Question 11

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?

Answer 11

1. Other party has no reasonable prospect of success, either their claim or defence, and
2. No other compelling reason why the case should proceed

Question 12

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)?

Answer 12

1. 14 days
2. 7 days
3. 3 days
   Same for interim payments

Question 13

Orders under summary judgment

Answer 13

1. Judgment on claim- C wins (if C applicant), case over
2. Strike out/dismissal = D wins (if D applicant), case over
3. Application dismissed = applicant fails, case proceeds.
4. 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.

Question 14

What is an interim injunction?

Answer 14

Prevent someone from doing something that would damage applicant or their case.

Question 15

Grounds for Interim injunction

Answer 15

1. There is a serious question to be tried
2. Damages not adequate (therefore applicant must use injunction) or D can’t pay damages and
3. Granting an injunction would cause less harm to D than not granting one (balance of probabilities)
4. 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.

Question 16

Procedure for interim injunction

Answer 16

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

Question 17

Freezing order

Answer 17

Stopping someone from moving assets abroad.

1. Good case
2. Assets in UK
3. Risk of removal

Question 18

Search order

Answer 18

Respondent hiding docs important to case.

1. Strength of case
2. Defendant’s activities cause very serious potential or actual harm to the claimant’s interest, and
3. Clear evidence that D has crucial docs to the trial and there is a real possibility the material may be destroyed

Question 19

At which court can freezing orders and search orders only be made?

What is needed as evidence?

If a without notice injunction is made…

Answer 19

High Court

Requires affadavit as evidence

the applicant must give ‘full and frank disclosure’

Question 20

Interim payment

Answer 20

1. Submit AoS/defence
2. Explain what the payment will be used for
3. Request a specific sum (get voluntarily first)
4. Show the sum is a reasonable proportion of the likely damages
5. Consider contributory negligence, etc.
6. D has admitted liability; or
7. C has won the case and obtained judgment for damages yet to be assessed or
8. The court is satisfied that, if the case went to trial, C would win.

Question 21

Under interim applications who determines the amount payable by D

Answer 21

Court. Reasonable sum of likely damages- D should be able to pay it

Question 22

When is permission sought for an appeal against an interim order?

Answer 22

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.

Question 23

Can a party appeal a decision for interim order?

Answer 23

Yes, get permission to appeal and only granted if real prospect of success/ some other compelling reason.

Question 24

What to note in appeal against interim order?

Answer 24

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)