Interim Applications Flashcards
What is an interim application?
Applications made after litigation starts but before the trail.
Which form is required to be filed to make an application for an interim order?
Form N244 - Application Notice.
Which court should the application notice for an interim order be sent to?
It MUST be made to the court where the claim started (or the court to which the claim has been transferred if relevant).
Explain the contents the application notice for an interim order must include.
- Must state what order is being sought and why.
- Evidence as to why the order is being sought is not theoretically required but in practice this will aid the application immensely and is therefore usually included.
- There is space for brief amounts of evidence upon the form, but where more space is needed a witness statement can be filed at the same time.
Explain what should be included in the witness statement (supporting the application for an interim order).
- It should be made by the person best able to address relevant points from personal knowledge.
- If the application is more technical (ie in terms of procedure or legal issues) it is likely to be made by the solicitor. In other situations it may be the case the witness statement is from the client;
- The statement should:
a) include the factual information and the evidence in support of the application; and
b) anticipate the opponents case where appropriate. - Sufficient detail must be provided to persuade the court to make the order (as oral evidence is not permitted from witnesses at the hearing).
Explain procedure at the hearing for an interim order.
- Sufficient detail is needed to persuade the court to make the order as oral evidence from witnesses will not be permitted;
- The solicitor can make submissions, but the judge will make their decision primarily based on the written evidence submitted with the application.
- This makes it crucial the witness statement contains the all relevant points (including relevant documents as exhibits if necessary).
What is a draft order?
Practice Direction 23A states, unless the application is incredibly simple. applicant should attach a draft of the order sought, to the application in order to assist the judge.
Explain the service requirements for the application notice.
- Must be served on the opponent at least 3 clear days before the court hearing to allow the other party to respond and object (if they want to).
- Clear days means that the date of service, the date of hearing, weekends and bank holidays are al excluded.
Explain consent orders in relation to applications for interim orders.
- If parties are in agreement the order is needed in the form requested, they can apply for order to be made by consent (meaning they do not have to attend a hearing).
- To do so, parties must provide court with material needed to be satisfied that it is the appropriate order to be made (usually a letter is sufficient).
Explain when applications for interim orders can be made without notifying the other party.
Notice of the application for the order need not be served on the other party where:
1) There is exceptional urgency; or
2) The overriding objective of CPR would be best achieved by making order without notice.
Give an example of where no notice need be served on the other party in relation to an application for an interim order.
An application to freeze opponents assets/ search their premises
If an application is made for an interim order and notice is not served on the other party, what must the application include?
- An explanation as to why notice wa not served on the other party;
- Full and frank disclosure, meaning even though notice has not been served the applicant must anticipate what the opponents objections likely would be.
Where an interim order is made based on application without notice, which documents must be served on the respondent?
- The court order;
- The application notice;
- Any supporting evidence.
Once the respondent has received the relevant documents relating to the order given without receiving notice, do they have any potential actions?
The respondent can apply to set aside/vary the order within 7 days of service of the order upon them.
Can a hearing for an interim order be conducted by telephone/ video conference?
Yes.
General rule is that applications with a time of 1hr or less will done done over the phone/ teams (obviously with exceptions such as when application has been made without notice).
list the three options a defendant has in response to a claim served.
1) Do nothing (C will apply for default judgment);
2) Admit the claim (allowing claim to be enforced);
3) File a full defence (proceedings to trial).
Define a summary judgment.
Where the defence put forward by D is so weak that it is clear C would win at trial, so to save costs, Part 24 CPR provides that they can apply for a summary judgment (effectively a judgment which makes an award to C without the need for going to trial). This also applies in the exact same way if C’s case is weak; D may apply for summary judgment and if it is deemed C’s case is weak the court will award summary judgment in D’s favour.
When MUST a court give a summary judgment Rule 24.2 CPR)?
1) Where the court considers that:
a) C has no real prospect of succeeding on the claim; or
b) D has no real prospect of defending the claim; and
2) there is no other compelling reason why the case should be disposed of at trial.
Explain how courts determine whether a claim/ defence has a real prospect of succeeding.
Court will consider evidence from case to case. Often, claims/ defences will have very little legal grounding and the court must be able to strike these cases out as quickly as possible. As such this is a completely subjective question for the court’s two answer on a case by case basis.
List some common reasons which may lead the court to think there is a compelling reason for allowing a claim to continue to trial.
1) the need to allow more time for the matter to be investigated, eg if there has been difficulty in contacting an important witness;
2) The claim or defence is highly complex/ technical so it can only be understood with all evidence available at a full trial;
3) Need to hear from witnesses, especially where oral evidence is disputed.
Is a summary judgment a type of interim order?
Yes.
List the possible orders a judge can make in response to an application for a summary judgment.
a) Judgment on the Claim - this means C has succeeded in their application for summary judgment and matter will proceed to enforcement;
b) Striking out/ Dismissal of the Claim - D will have sucked in their application to dispose of C’s claim and case comes to an end;
c) Application is dismissed - applicant has failed to bring the case to early end and it will proceed towards trial;
d) Conditional order - application has not been granted, but equally respondent has not succeeded in having it dismissed - neither side wins. this will be made where court concludes it is possible, but not probable claim or defence may succeed. Party will be allowed to continue with litigation provided they pay the court a sum if money/ take a specified step in relation to their claim. Ensures party is genuine in their desire and ability to pursue the matter.
What likely costs order is court likely to give where claimant is successful in obtaining a summary judgment?
In relation to specified sums - court may award fixed costs under Part 45 CPR. It is open to C to request higher figure (as their costs usually exceed the award) and to ask for a summary assessment of costs.
In relation to unspecified claims - usual rule applies so that the winner (c) is granted their costs. These are summarily assessed and further hearing will be listed to assess the damages payable by D (at a disposal hearing).
What order is made in relation to costs where D successfully secures a summary judgment and claim is entirely struck out?
Court will likely order claimant to pay D’s costs of the whole claim (subject to a summary assessment).
what costs order is likely made if the application for summary judgment is dismissed?
Proceedings will continue and unsuccessful party will pay successful party’s costs of summary judgment hearing.
What is an interim injunction?
An injunction granted before trial. they remain in force util the matter comes to trial, at which point court assess whether to make a final injunction or not.
How are injunctions enforced?
Unlike other court orders, breach of an injunction is punishable as a contempt of court. They are a discretionary remedy where it is deemed that damages are insufficient remedy for the applicant.
List the factors courts will consider when determining whether to grant an interim injunction.
Courts will determine whether:
a) serious question is to be tried;
b) damages are an adequate remedy fr either side;
c) balance of convenience lies in favour of granting or refusing injunction; and
d) whether there are any special factors.
Explain injunctions without notice.
Applicant may apply for an injunction without serving notice on the other party. This is usually where secrecy is deemed necessary (as the other party for example could try to cause irreparable damage to the applicant) the court had to be satisfied injunction without notice is appropriate. If so they will do one of two things:
1) Court may fix a date for further hearing with all parties present, so injunction will last until the date specified for that hearing. If D successfully argues that the injunction should not have been granted, it will be set aside.
2) Rather than fixing a hearing date, an injunction without notice gives D chance to apply on notice for the order to be varied/ set aside. The injunction will remain in force until court is satisfied it should be set aside.
Explain the cross-undertaking concept.
If one part is granted an interim injunction, the applicant of that injunction must undertake to the court to pay any damages the respondent (or other parties affected by the inunction) sustains by reason of the injunction, if it later transpires the injunction should not have been granted.
List examples of injunctions without notice which can be granted.
1) Freezing injunctions - restrain party from removing assets from the jurisdiction (England and Wales). If notice was given, respondent could simply transfer their assets prior to the hearing. Court must be satisfied applicant has good arguable claim and there is a real risk respondent will dispose of their assets.
2) Search order - compels respondent to allow their premises to be searched by the applicant, where they believe respondent has docs/ property belonging to them. If notice was given, these items could be destroyed or hidden. Here, the court must be satisfied the applicant appears to have a strong case, and they will suffer serious harm if order is not made.
Explain the procedure for application for an interim payment.
- Application must be served at leat 14 days before the hearing date.
- Evidence must be provided and should set out:
a) amount t requested and what it will be used for;
b) amount of the sum of money likely to be awarded at final judgment; and
c) reason for believing the grounds required by the CPR are satisfied.
Define interim payments.
Advance payment on account of any damages, debt or other sum (excluding costs) that a defendant may be liable two pay. It enables claimants with strong cases to avoid financial hardship/ inconvenience that might otherwise be suffered because of delays between serving a claim and a final judgment.
How should evidence be served in response to an interim injunction application by the applicant?
The evidence should be served at least 7 days before the hearing and the applicant must then respond to this evidence with further evidence as long as it is served at leat three days before the hearing.
Which grounds need to be satisfied for the court to grant an interim payment?
Any one of the below:
1) D has admitted liability; or
2) C has obtained judgmet against D for damages to be assessed for a sum of money; or
3) Court is satisfied that if the case went to trial, C would obtain a judgment for a substantial amount of money.
Once they have established a party’s entitlement to interim payment, the court has discretion in relation to two further questions in order to determine whether to award the interim payment. What are these questions?
1) Should an order for interim payment be made? - if issues are complex/ difficult questions of law arise, court may decide not to order an interim payment at all.
2) If yes, what should the amount be? - if applicant succeeds satisfying court an interim payment is necessary, court cannot order a sum more than a reasonable proportion of the likely amount of the final judgment and must also take into account any counterclaims/ contributory negligence.
True or False: An interim payment must always be made in instalments?
False. A court can order the payment of an interim payment to be made in either instalments or one sum.
True or False: the fact an interim payment has been made/ granted will be kept from the trial judge until after they have decided fault and liability.
True. This is to avoid any influence over the judge’s decision.
True or False: If a claimant applies for summary judgment before a defence is filed, the defendant need not file a defence before the hearing of the summary judgment application.
True.
Unless the court orders otherwise, C cannot apply for summary judgment until D has filed acknowledgement of service or serve a defence. So if they do D need not file a defence until the court has refused the application. If the application isn’t granted (which it will not be) they will give directions as to the filing and service of the defence.
True or false: if a claimant is awarded summary judgment in a specified claim, the usual costs rule applies so that the loser, the defendant, is ordered to pay the winner’s, the claimant’s costs; the costs will be summarily assessed, and a further (disposal) hearing will be listed to assess the amount payable by the defendant?
False.
True or False: The court may make an order for an interim payment where 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.
True.
