Interim Applications

Question 1

what is the meaning of an application notice?

Answer 1

means a document in which the applicant states his intention to seek a court orde

Question 2

what is the meaning of a respondent?

Answer 2

(a) the person against whom the order is sought; and
(b) such other person as the court may direct.

Question 3

to make apply for a court order, where do you make the application?

Answer 3

• the general rule is that an application must be made to the court or County Court hearing centre where the claim was started.
• if the case has been transferred, then the interim application must be heard at the court. which it is transferred to
• If the parties have been notified of a fixed date for the trial, an application must be made to the court where the trial is to take place.
• if the application is being made before the claim has started, then the most likely court to hear the case will be the court to apply for the interim application
• if the application is to enforce a judgment, you apply to the court which heard the case.

Question 4

when must you make an application for a court order?

Answer 4

if there is a specified time for a court order to be applied for, ti must be made within that time period

Question 5

what must an application notice for an application for a court order include?

Answer 5

An application notice must state—

(a) what order the applicant is seeking; and
(b) briefly, why the applicant is seeking the order.

Question 6

when may applications for a court order be made without a hearing?

Answer 6

The court may deal with an application without a hearing if—

(a) the parties agree as to the terms of the order sought;
(b) the parties agree that the court should dispose of the application without a hearing, or
(c) the court does not consider that a hearing would be appropriate.

Question 7

Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person—

Answer 7

(a) against whom the order was made; and
(b) against whom the order was sought.

Question 8

can a party apply to vary or set aside a court order that was made without notice?

Answer 8

Yes. An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

Question 9

can the court proceed in an application for a court order in the absence of a party?

Answer 9

Yes.

Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence.

Where the applicant or any respondent fails to attend the hearing of an application and the court makes an order at the hearing,
the court may, on application or of its own initiative, re-list the application.

Question 10

what happens if a party applies for a court order and it is dismissed of “totally without merit”

Answer 10

If the court dismisses an application (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the application is totally without merit—

(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 11

when only can an application for a court order be made without notice?

Answer 11

(1)where there is exceptional urgency,
(2)where the overriding objective is best furthered by doing so,
(3)by consent of all parties,
(4)with the permission of the court,
(5)Where a date for a hearing has been fixed and a party wishes to make an application at that hearing but he does not have sufficient time to serve an application notice he should inform the other party and the court, or
(6)where a court order, rule or practice direction permits

Question 12

when can a hearing for a court order be heard over the telephone?

Answer 12

(a) allocation hearings;
(b) listing hearings; and
(c) interim applications, case management conferences and pre-trial reviews with a time estimate of no more than one hour.

Question 13

for court orders, where the parties to a matter wish to use video conferencing facilities, and those facilities are available in the relevant court, who do they apply to for directions?

Answer 13

they should apply to the Master or District Judge for directions

Question 14

when may an order be made for an interim remedy?

Answer 14

An order for an interim remedy may be made at any time, including—
(a) before proceedings are started; and
(b) after judgment has been given.

unless the court otherwise orders, a defendant may not apply for any orders before they have filed either an acknowledgement of service or a defence.

Question 15

when can the court grant an order when the claim has not started?

Answer 15

the court may grant an interim remedy before a claim has been made only if—
(i) the matter is urgent; or
(ii) it is otherwise desirable to do so in the interests of justice

Where it grants an interim remedy before a claim has been commenced, the court should give directions requiring a claim to be commenced.

Question 16

how does a party apply for an interim remedy?

Answer 16

(1) The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.
(2) An application for an interim remedy must be supported by evidence, unless the court orders otherwise.
(3) If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given.

Question 17

interim remedies. Notice. Commentary 25.3.2

Answer 17

• An application for a court order in the form of an order for an interim remedy may be made without notice “if it appears to the court that there are good reasons for not giving notice”
• The court should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a freezing or search order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act

Question 18

interim remedy order hearings in private. Commentary 25.3.4

Answer 18

Exceptional circumstances which may be applied to allow private hearing of an application for an order for an interim remedy are:
- that publicity would defeat the object of the hearing; that it is a hearing on an application without notice and it would be unjust to any respondent for there to be a public hearing;
- that the hearing involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality.

Question 19

application notice for a court order to be filed

Answer 19

The general rule is that an applicant must file an application notice.

An applicant may make an application without filing an application notice if—
(a) this is permitted by a rule or practice direction; or
(b) the court dispenses with the requirement for an application notice.

Question 20

must a copy of the application notice for a court order be served on each respondent?

Answer 20

The general rule is that a copy of the application notice must be served on each respondent.

An application may be made without serving a copy of the application notice if this is permitted by—
(a) a rule;
(b) a practice direction; or
(c) a court order.

Question 21

what must an application notice for a court order include?

Answer 21

An application notice must state—
(a) what order the applicant is seeking; and
(b) briefly, why the applicant is seeking the order.

Question 22

when must a copy of an application notice for a court order be served?

Answer 22

A copy of the application notice—
(a) must be served as soon as practicable after it is filed; and
(b) except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application.

Question 23

what else must be served with a copy of the application notice for a court order?

Answer 23

When a copy of an application notice is served it must be accompanied by—
(a) a copy of any written evidence in support; and
(b) a copy of any draft order which the applicant has attached to his application.

Question 24

On receipt of an application notice containing a request for a hearing the court…

Answer 24

…will notify the applicant of the time and date for the hearing of the application.

Question 25

Where the Master or District Judge does not agree that the application is suitable for consideration without a hearing, the court will…

Answer 25

…notify the applicant and the respondent of the time, date and place for the hearing of the application and may at the same time give directions as to the filing of evidence.

Question 26

when should an application for a court order be made?

Answer 26

Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.

Question 27

what should the applicant bring to a court order hearing?

Answer 27

Except in the most simple application the applicant should bring to any hearing a draft of the order sought and provide a copy by electronic means if possible.

Question 28

evidence for interim remedies and security for costs application. Commentary 25.3.3

Answer 28

• An application for an interim remedy must be supported by evidence unless the court orders otherwise
• However, at such hearings a party may, if they wish, in support of their application rely solely on the matters set out in (a) their statement of case, or (b) their application, provided that the statement of case or application is verified by a statement of truth

Question 29

when should the application notice be served when there is an in-person hearing?

Answer 29

the application notice must be served as soon as practicable after it has been issued and, if there is to be a hearing, at least 3 days before the hearing date

Question 30

Where there is to be a telephone hearing, when should the application notice be served?

Answer 30

Where there is to be a telephone hearing the application notice must be served as soon as practicable after it has been issued and in any event at least 5 days before the date of the hearing.

Question 31

Interim remedies and security for costs. applicants disclosure duties where application action is made without notice. Commentary 25.3.5

Answer 31

• It is well-established that on all applications without notice it is the duty of the applicant (including an applicant in person) and those representing the applicant to make full and frank disclosure of all matters relevant to the application; this includes all matters of fact or law which are or may be adverse to the applicant.
• An applicant must disclose to the judge “any fact known to him which might affect the judge’s decision whether to grant relief or what relief to grant”

(1) The applicant must show the utmost good faith and disclose their case fully and fairly.
(2) They must, for the protection and information of the defendant, in the evidence in support of the application summarise their case and the evidence on which it is based.
(3) They must identify the crucial points for and against the application, and not rely on general statements and the mere exhibiting of numerous documents.
(4) They must investigate the nature of the claim asserted and the facts relied on before applying and must identify any likely defences.
(5) They must disclose all facts which reasonably could or would be taken into account by the judge in deciding whether to grant the application.

Question 32

interim remedies and security for costs. applicant’s disclosure duties where application has been made in short notice. Commentary 25.3.5.1

Answer 32

• application notice (whether for an interim injunction or some other relief) must be served as soon as practicable after it is filed and, except where another time limit is specified, must be served at least three days before the court is to deal with the application.
• where it is added that the evidence must also be served accordingly.
• The policies underlying the rules here are that the applicant must act promptly, but the respondent must be given sufficient notice, thus ensuring (in accordance with the overriding objective) that the matter is dealt with both expeditiously and fairly.
• Even if the period of notice is shorter than three days, the court may direct that, in the circumstances of the case, sufficient notice has been given and deal with the application

Question 33

Interim remedies and security for costs. Discharge of injunction for material non-disclosure. Commentary 25.3.6

Answer 33

• In an interim injunction case, if the duty of full and fair disclosure is not observed, the court may discharge the injunction. It is no excuse for an applicant to say that they were not aware of the importance of the matters they omitted to state.
• This rule has a two-fold purpose. It deprives the wrongdoer of an advantage improperly obtained. Further, it serves as a deterrent to ensure that persons who make applications without notice realise that they have this duty and the consequences (which may include a liability in costs) if they fail
• Although discharge of the order is not automatic on any non-disclosure being established of any fact known to the applicant which is found by the court to have been material, it would only be in exceptional circumstances that a court would not discharge an order where there had been deliberate non-disclosure or misrepresentation

Question 34

interim remedies and security for costs. Applications to set aside for material non-disclosure not to be made without proper reason. Commentary 25.3.7

Answer 34

The courts have expressed concern that applications to set aside freezing injunctions based on allegations of material non-disclosure should not turn into substantial “satellite litigation”. Issues of non-disclosure or abuse of process in relation to a freezing order ought to be capable of being dealt with quite concisely.

Question 35

interim remedies and security for costs. Discharge and re-grant of an injunction. Commentary 25.3.8

Answer 35

• Where serious and culpable non-disclosure sufficient to result in the court discharging an interim injunction granted without notice has been exposed and established, the question whether a fresh injunction should be granted is likely to arise. In these circumstances the judge has a balancing task to perform.
• On the one hand, if justice requires that a fresh injunction should be granted to protect the applicant from harm that might befall them, it might be thought unjust to refuse it on the ground of non-disclosure
• On the other hand, such is the importance of the duty that, in the event of any substantial breach, the court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given them

Question 36

what is the general procedure for interim payments?

Question 37

who can apply for an interim payment?

Answer 37

claimant

Question 38

when can a claimant make make an application for interim payment?

Answer 38

The claimant may not apply for an order for an interim payment before the end of the period for filing an acknowledgement of service applicable to the defendant against whom the application is made.

Question 39

what is the procedure for an interim payment application?

Answer 39

A copy of an application notice for an order for an interim payment must—
(a) be served at least 14 days before the hearing of the application; and
(b) be supported by evidence.

If the respondent to an application for an order for an interim payment wishes to rely on written evidence at the hearing, he must—
(a) file the written evidence; and
(b) serve copies on every other party to the application,
at least 7 days before the hearing of the application.

If the applicant wishes to rely on written evidence in reply, he must—
(a) file the written evidence; and
(b) serve a copy on the respondent,
at least 3 days before the hearing of the application.

Question 40

what form can the court award an interim payment?

Answer 40

The court may order an interim payment in one sum or in instalments.

Question 41

The court may only make an order for an interim payment where any of the following conditions are satisfied—

Answer 41

(a) defendant has admitted liability to pay damages or some other sum of money to the claimant;

(b) the claimant has obtained judgment against that defendant for damages

(c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim;

(d) the claimant is seeking an order for possession of land and the court is satisfied that, if the case went to trial, the defendant would be held liable (even if the claim for possession fails) to pay the claimant a sum of money for the defendant’s occupation and use of the land while the claim for possession was pending;

Question 42

For an application for interim payments, in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied—

Answer 42

the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the court cannot determine which); and

all the defendants are either—
(a) a defendant that is insured in respect of the claim;
(b) a defendant whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988 or an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself; or
(c) a defendant that is a public body.

Question 43

what is the limit for what amount the court can award for an interim payment?

Answer 43

The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

Question 44

what must the court take into account when making an interim payment?

Answer 44

(a) contributory negligence; and
(b) any relevant set-off or counterclaim.

Question 45

the court may award defendant interest on the overpaid amount from the date when they made the interim payment.

Answer 45

Where—
(a) a defendant has made an interim payment; and
(b) the amount of the payment is more than his total liability under the final judgment or order,

Question 46

can the court make an order to adjust an intern payment?

Answer 46

Yes. despite whether or not the defendant has made a payment in accordance with an order.

Question 47

what are the powers of the court where it has made an order for interim payment?

Answer 47

(a) order all or part of the interim payment to be repaid;
(b) vary or discharge the order for the interim payment;
(c) order a defendant to reimburse, either wholly or partly, another defendant who has made an interim payment.

Question 48

the court may only make an order to to reimburse, either wholly or partly, another defendant who has made an interim payment where —

Answer 48

(a) the defendant to be reimbursed made the interim payment in relation to a claim in respect of which he has made a claim against the other defendant for a contribution, indemnity or other remedy; and
(b) where the claim or part to which the interim payment relates has not been discontinued or disposed of, the circumstances are such that the court could make an order for interim payment.

Question 49

what is the restriction on disclosure of an interim payment?

Answer 49

The fact that a defendant has made an interim payment, whether voluntarily or by court order, shall not be disclosed to the trial judge until all questions of liability and the amount of money to be awarded have been decided unless the defendant agrees.

Question 50

An application for an interim payment of damages must be supported by evidence dealing with the following —

Answer 50

(1)the sum of money sought by way of an interim payment,
(2)the items or matters in respect of which the interim payment is sought,
(3)the sum of money for which final judgment is likely to be given,
(4)the reasons for believing that the conditions set out in rule 25.7 are satisfied,
(5)any other relevant matters,
(6)in claims for personal injuries, details of special damages and past and future loss, and
(7)in a claim under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim is made and the nature of the claim.

Question 51

who can make a security for costs?

Answer 51

defendant

Question 52

what will the court do for an application for security of costs?

Answer 52

(3) Where the court makes an order for security for costs, it will—
(a) determine the amount of security; and

(b) direct—
(i) the manner in which; and
(ii) the time within which

the security must be given.

Question 53

what must the application for security of costs be supported by?

Answer 53

An application for security for costs must be supported by written evidence.

Question 54

what kind of power does the court haver to award security for costs?

Answer 54

discretionary

Question 55

when may a court award security for costs?

Answer 55

The court may make an order for security for costs if—

(a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and
(b) one or more of the conditions applies, or an enactment permits the court to require security for costs.

Question 56

what are the conditions which are to apply to award s security for costs order?

Answer 56

• the claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so
• the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him

Question 57

security for costs order. Stifling. Commentary 25.13.1.1

Answer 57

• If the effect of an order for security would be to prevent the respondent to application from continuing its claim, then security should not be ordered
• However, the burden lies on the respondent to show, on the balance of probabilities, that the effect of an order would be to stifle the claim
• it is necessary for the Claimants to demonstrate the probability that their claim would be stifled. It is not something that can be assumed in their favour. It must turn upon the evidence. I approach the matter on the footing that there needs to be full, frank, clear and unequivocal evidence before I should draw any conclusion that a particular order will have the effect of stifling. The test is whether it is more likely than not

Question 58

security for costs order. the merits. Commentary 25.13.1.2

Answer 58

• in respect of security for costs the parties should not attempt to go into the merits of the case unless it can be clearly demonstrated one way or another that there is a high degree of probability of success or failure
• the merits were relevant only where it could be demonstrated that the party relying on the merits could show that there was a very high probability that that party would succeed.

Question 59

Security for costs order. Insolvent company. Commentary 25.13.12

Answer 59

• In order to establish ground (c) the applicant must show “there is reason to believe that it [i.e. the claimant company] will be unable to pay the defendant’s costs if ordered to do so”.
• The opening words “there is reason to believe” have the effect of watering down the obligation which follows, i.e., the obligation to prove the company’s inability to pay costs if ordered to do so.
• The defendant does not have to show on a balance of probabilities that the claimant company “will be unable to pay” etc

Question 60

security for costs order. taking steps as to assets which hinder enforcement. commentary 25.13.16

Answer 60

• the requirement is that the claimant has taken in relation to his assets steps which, if he loses the case and a costs order is made against him, will make that order difficult to enforce.
• It is not sufficient that the claimant has engaged in other conduct that may be dishonest or reprehensible
• The test in that regard is objective: it is not concerned with the claimant’s motivation but with the effect of steps which he has taken in relation to his assets
• However, motive, intention and the time when steps were taken are all relevant to the exercise of the court’s discretion
• In the exercise of its discretion, the court may take into account whether the claimant’s want of means has been brought about by any conduct of the defendant

Question 61

what is an interim injunction?

Answer 61

a court order prohibiting a person from doing something or requiring a person to do something.

Question 62

which case contains the test used for an interim injunction?

Answer 62

American Cyanamid

Question 63

what are the principles of the American Cyanamid case?

Answer 63

• is there a serious question to be tried?
• would damages be an adequate remedy for a party injured by the courts grant or failure to grant an interim remedy?
• what is the balance of convenience?

Question 64

Interim Injunction: Serious question to be tried

Answer 64

An injunction is not a cause of action - it is a remedy. Therefore, an applicant cannot sue for an injunction. The applicant must have a pre-existing cause of action.
The court must be satisfied that this is not “frivolous or vexatious” and that “there is a serious question to be tried”. In many cases, this is not a difficult hurdle to surmount. However, if this test cannot be met, the injunction will generally be refused (and the court will not go on to consider steps 2 and 3).

Question 65

Interim Injunction: would damages be an adequate remedy for a party injured by the courts grant or failure to grant an interim injunction?

Answer 65

this will be done from both the applicant and respondent’s perspective

applicant’s perspective - the court will generally refuse an injunction if the applicant could be adequately compensated by damages for any loss caused by the refusal to grant an interim injunction. However, damages may be inadequate if the respondent has no means of paying them or the harm being caused is irreparable, cannot be quantified, or is serious and likely to continue.

respondent’s perspective – if an injunction is granted, the respondent is going to be prevented from doing something, or required to do something, until trial – but it might transpire that the injunction should never have been granted, most likely if the applicant fails at trial. The court will ask itself whether the respondent could be adequately compensated by the applicant if it transpires that the injunction was wrongly granted. If so, then this suggests the injunction should be granted.

Question 66

interim injunction: Balance of convenience

Answer 66

if it appears that damages would be adequate for neither party, then the court will consider a very broad range of factors to try to ascertain whether granting or not granting the injunction carries the lesser risk of injustice ie to ascertain where the ‘balance of convenience’ lies.

preserving the status quo

Question 67

types of interim injunction

Answer 67

• Prohibitory
• mandatory
• Quia timet

Question 68

interim injunctions. Undertakings

Answer 68

court will often decide to grant an interim injunction only if the applicant offers an cross-undertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction .
The cross-undertaking is made to the court. It is there for the protection of the respondent, but the court can also require (as a condition of granting the injunction) an undertaking to be given for the protection of any other person who may suffer loss because of the order

Question 69

where interim injunction applications are heard without notice, what is done to equalise the respondents absence?

Answer 69

• the applicant will attend the hearing and give full and frank disclosure
• the applicants representative will have to produce a full attendance note of the hearing and serve it on the respondent without delay.
• the respondent will be allowed to attend court to a second hearing known as a “return date” where respondent can put forth their own submissions.

Question 70

when can an applicant apply for an interim injunction before the actual claim is issued?

Answer 70

if the application is:
- Urgent; or
- otherwise desirable to do so in the interests of justice.

Question 71

where, in interim injunction applications, the responder has attended the “return date” hearing, what can the court order?

Answer 71

• Maintain order (to keep the injunction in place until the trial of the substantive matter).
• Discharge the injunction vary the terms of the injunction.
• Enforce the applicant’s undertaking in damages if it transpires that the injunction should not have been granted.
• Accept an undertaking by the respondent not to do the acts in question, in place of the injunction.

Question 72

can the court compel a party to make an undertaking of damages to the court for an interim injunction?

Answer 72

No. but the court can refuse to grant the interim injunction unless the applicant makes the undertaking.

Question 73

what are the two exceptions where the guidelines outlines by the American Cyanamid test will be altered for interim injunctions?

Answer 73

• where there is fraud
• where the disposal of the application will dispose of the case itself.

Question 74

interim injunctions. where the disposal of the application will dispose of the case itself, how does the American Cyanamid test change?

Answer 74

instead of asking whether there is a serious question to be tried, it is asked “whether the applicant has a prima facie case”.