Interim applications Flashcards
Example of Interim Applications?
Summary judgment
Default Judgment
Strike Out
Norwich Pharmacal Order
What is another name for applications which are not urgent?
‘With Notice’ Applications
TRUE OR FALSE: Urgent applications are called ‘Without Notice’ applications?
TRUE
Where can you find non-urgent interim applications in the CPR?
CPR Part 23
What must be served on a respondent for interim applications?
- Application notice
- Evidence (unless court orders otherwise)
- Draft of requested order
What must the application notice include?
If applicant is not a party to proceedings?
- Order sought and why it is sought
- Title
- Claim reference number
- Full name of applicant
- Request for hearing
- Signed
- Statement of Truth
- Not Party to Proceedings: address/postcode for service
What evidence must be provided with the interim application?
Written evidence
What must a draft order include?
- Must set out clearly what respondent must do or not do
2. Must include undertaking to Court
How is the date of hearing for an interim application decided?
Must be atleast 28 days after date of notice
When must an interim application after having been filed have to be served to parties?
Atleast 3 clear days before hearing of the interim matter
When must the application notice be served on parties if the hearing will take place via telephone?
As soon as practicable after issuing or atleast 5 clear days before hearing
How do you calculate clear days?
What should not be counted?
Do not include the beginning day or the dat on which an end event occurs
Weekends, bank holidays, Christmas or Good Friday
TRUE OR FALSE: A Norwich Pharmacal order is a with notice interim application?
TRUE
What is the case relating to Norwich Pharmacal Orders?
Norwich Pharmacal orders (Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133
What is the main purpose of a Norwich Pharmacal Order?
- identify a potential defendant /
2. identify facilitator of wrongdoer
TRUE OR FALSE: Norwich Pharmacal Orders may also be used to find witnesses? Why not?
False. They did not facilitate the wrongdoing
How can C bring a Norwich Pharmacal Order where no claim has been brought yet?
Bring a Part 8 claim (seeking Court’s decision on a question)
Examples of urgent Interim Injunctions before commencement of proceedings?
Prohibitory Injunction
Mandatory Injunction
TRUE OR FALSE: Urgent Interim Injunctions are ‘Without Notice’ ?
TRUE
What does CPR Part 25 include?
Interim Remedies
What does CPR Part 23 include?
non-urgent interim applications
TRUE OR FALSE: Interim Injunctions are an example of Interim remedies?
TRUE
When may the Court grant an interim remedy following a without notice application?
If it appears that there are good reasons for not giving notice
Three examples of Interim applications which can be made before proceedings start?
- Pre-Action disclosure
- Norwich Pharmacal Order
- Interim Injunctions
When should an application for an interim injunction be made?
- Only If it is urgent
2. desirable to do so in the interest of justice
What must the injunction be for a Court to grant it? Why?
just and convenient
It is an equitable remedy
What will courts take into account when deciding whether to grant an injunction?
The merits of the case
TRUE OR FALSE: Urgent applications made to the court need not be served on the parties?
TRUE
What are the pre-requisite for a with notice application?
Desireable to do so in the interest of justice
What are the pre-requisite for a without notice application?
- Desirable in the interest of justice
- Urgent
- Substantive cause of action
- Must appear to the Court just and convenient
TRUE OR FALSE: If it is a without notice application, A need not inform R?
False. Applicant must still notify respondent that application is being made
When must the application notice, evidence and draft order be filed with without notice application?
- Atleast 2 hours before hearing
2. If not, A may make an undertaking to the court to file either the same day or the next working day after the hearing
What is an undertaking?
An undertaking is a binding promise to the court
What should a draft order include for a without notice application?
undertaking by A to serve application notice, evidence and draft order within time frame set by the court
What must the evidence show when making a without notice application?
- Why there was no time to issue claim form
- good reason why it is a without notice application
- state what informal notice has been given to R
TRUE OR FALSE: Even if A does not give notice to R, there is no way of court knowing?
False. Because the evidence which is to be included must state what informal notice has been given to R
What is the disclosure duties imposed on an applicant applying for a without notice application?
- duty to investigate facts and present evidence fairly
2. duty to disclose fully all maters relevant to the application which may be adverse to their application
What happens if it is proven that A did not make full and frank disclosure?
Interim Injunction may be discharged
What evidence is required in without notice applications?
Written evidence
What undertakings must the draft order for a without notice application set out?
- undertaking to court that A pays any damages sustained by R unless court otherwise orders
- undertaking for A to serve application notice to R
- undertaking to file and pay any appropriate fees
When will an interim injunction be discharged?
If A fails to comply with the undertakings in the order
What happens if A fails to comply with the undertakings in the order?
Interim injunction may be dischared
Once an interim injunction application can be made, can R still refuse it? If so, how?
R has right to apply to set aside or vary the order within 7 days of service
Who normally hears summary judgment applications and what court?
District Judge in County Court
Why do people make an application for Pre Action disclosure ?
potential claimant needs to look at documents belonging to a potential defendant to decide whether or not there is a viable case.
how does Pre Action disclosure help a potential claimant?
It helps them to decide whether or not they have a viable case
What are the requirements for Interim applications?
- Both the A and the R must be likely to be a part to the potential proceedings
- The materials must be likely or must have been in the possession, custody or power of the potential defendant
- The material must be relevant to an issue likely to arise in the claim
- The materials requested must be materials which would have to be disclosed under standard disclosure.
When may the court make an order for inspection?
- If it appears to court that the material may become in the subject matter of proceedings
When may the court not make a order for pre-action disclosure?
if it is likely to be injurious to the public interest
Who pays the cost of an interim application order?
The party requesting it
Even in without notice applications, what must the A do?
notify the R informally that the application is being made
When must the application notice, evidence and draft order be filed in a without notice application?
must be filed two hours before the hearing
In a without notice application, what undertaking(s) must A give to the court?
- that they will file the application notice at court ont he same day of hearing or to file it on the next working day following the hearing
- that they will serve to R the application notice, evidence and order within time frame specified by the court
What must the evidence in a without notice application show?
- why there was no time to issue a claim form
- good reasons why interim application is without notice
- state what informal notice given to R
What is the Applicants disclosure duty in without notice applications?
What happens if the Applicant fails their duty?
- investigate facts and present fairly
- must disclose fully all matters relevant to application
order may be discharged
What happens if the Applicant fails the undertakings in the order?
Order may be discharged
What right is given to R in without notice applications and when must this be exercised?
right to apply to set aside or vary the order
within 7 days
What can C do if D fails to admit, acknowledge service or respond with a defence?
C can apply for Default Judgment
What are the conditions to be satisfied for Default Judgement?
D
How long does C have after filing CF/POC but not receiving a response from D to apply for default judgment?
6 months
What happens if C does not apply for default judgment after D has not responded and time limit of 6 months have ran out?
Automatic stay
When is DJ not available?
- Part 8 claims
- Where PD says so
- Where D has made application to strike out C’s case
- Where there is a pending application for Summary Judgment by D
TRUE OR FALSE: D can apply to set-aside default judgment?
TRUE
If D aims to apply to set aside default judgment, when must this be done?
not more than 14 days after receiving default judgment
What happens if DJ was obtained in a court, not D’s home court but D wishes to apply to set aside or vary the DF?
Any application to set-aside/ vary DJ will be moved there
if not already moved
When will D want to make an application to set aside or vary DJ?
-DJ wrongly entered
Where D can show
- real prospect of successfully defending case
- other good reason why it should be set aside/varied or other good reason why D should be allowed to defend claim
What must be included in an application to set aside or vary default judgment?
Application Notice
Evidence
Draft order
Draft defence
What is to be included in all Part 23 applicaitions?
Application Notice
Evidence
Draft order
Who pays costs for order to set aside?
Party who the order is to not for
When may the court deal with an application without a hearing?
- Parties agree to it and to terms of order sought
2. Court does not consider a hearing appropriate
Where can interim applications be found in white book?
CPR Part 23
When can a party apply for SJ?
At any time once proceedings have been commenced
What does the Applicant need to show for a successful strike out?
- No reasonable ground for bringing a claim
2. Claim would be an abuse of court process
What are the grounds for SJ?
- No real prospect of succeeding in the claim/ successfully defending claim
- No other compelling reason to be disposed of at trial
What may an application for SJ be based on?
- A point of law
- Evidence reasonably expected to be available at trial/ or lack of it
- combination of above
When can D apply for SJ?
At any time once proceedings have been commenced where he believes C does not have a case
When can C apply for SJ?
After D has filed AOS or Defence if he believes D has no defence
What notice is to be given to R, once hearing date for SJ is set by the court?
atleast 14 clear days
When must R file and serve on A written evidence in response of application for SJ?
atleast 7 clear days
When must A file and serve written evidence in reply to R in an application for SJ?
atleast 3 clear days
When must a statement of cost be filed when applying for SJ?
24 hours before SJ hearing
What happens if A who is D in a claim succeeds in SJ?
Whole claim is struck out/ dismissed
Examples of interim injunctions
Prohibitory
Mandatory
American Cynamid
When can C apply for an interim injunction?
D needs to have filed either AOS/Defence
When can D apply for an interim injunction?
C after filing CF
What is the relevant caselaw which proves a guideline for an advocate when trying to persuade the court to exercise discretion to grant interim injunction?
American Cynamid [1975]
What are the American Cynamid principles in order?
- Serious issue to be tried
- Damages adequate for A?
- Damages adequate for R?
- Balance of convenience
- Status Quo
What is the first principle of the American Cynamid?
Serious issue to be tried
What is the second principle of the American Cynamid?
Adequate for Applicant?
What is the third principle of the American Cynamid?
Adequate for Respondent?
What is the fourth principle of the American Cynamid?
Balance of Convenience
What is the fifth principle of the American Cynamid?
Status Quo
When would damages likely not be an adequate remedy under American Cynamid principles?
- R unlikely to pay damages
- damages not translatable into money
- damages are difficult to assess
When can you move to the next principle of assessing whether damages would be adequate for R in the American Cynamid principles?
once established that damages would not be an adequate remedy for A
When can you move to the next principle ofassessing where the balance of convenience lies in the American Cynamid principles?
once established that R would be adequately compensated for any loss caused by the interim injunction
What do you do next after establishing that the balance of convenience does not lie in favour of either party?
status quo should prevail
What is meant by status quo should prevail?
no interim injunction granted as positions are evenly balanced between parties
TRUE OR FALSE: A successful interim application will be a final disposal of the case?
TRUE
