Interim applications Flashcards
When can an interim application be made?
Any part of proceedings, including before issuing claim (E.g. extension of time, amendment to SOC, provide further info, specific disclosure, permission to rely on expert evidence)
Made by any party
I.e. applications for court orders in period between commencement of proceedings and trial
Are rules for all interim applications the same?
No, there are…
1. Default rules for interim applications
2. Modified/supplemented rules for particular types
When should an interim application be made? Should anything happen beforehand?
- Should make as soon as apparent it is necessary/desirable to
- Should take reasonable approach in trying to agree matters first to avoid applying to court/make matters less contentious
Some applications could be dealt with same time as case management conference or at pre-trial review
What is meant by ‘bunching’ interim applications?
If a hearing has been fixed (for whatever reason), parties must issue any necessary applications to ensure outstanding matters are dealt with at single hearing wherever possible
Will the respondent always be the D?
No - may be the C
Same with applicant
When making the application notice, what form is filled in and what must it state?
Form N244 - stating…
- Who is making application
- What order applicant wants
- Why the applicant is asking for that order
- What information applicant relies upon
Court fee payable to issue
Where will the application be made if the court has not yet been decided on?
I.e. in pre-action applications
Where it is likely to be dealt with
Should evidence be given in an application even if not required?
Yes - to satisfy court that order be granted
What are the 3 ways evidence can be given as part of an application notice? What else should the application file?
- In application notice itself
- By referring to existing SOC
- Witness statement (or affidavit if required)
Application should also file draft order setting out terms it seeks
If all goes to plan, what does the applicant take/send to court and what will the court issue?
- Applicant takes/sends application notice, evidence and draft order
- Court issues application and provides notice indicating date/time application will be heard by court
After the application has been issued by the court, what does the applicant serve on other party and when must this be?
- Serves application notice, court note indicating date/time hearing, evidence and draft order on respondent
- Must be served as soon as pracitcable and not less than 3 days before application to be heard
NB this is the general rule
What can the respondent file in response and when must this be?
- Can file evidence in form of witness statement (/affidavit)
- Must be filed/served ASAP (and in accordance with timings stated by court on application notice)
ASAP = as possible, not practicable
If the applicant wants to respond with further evidence when must this be done by?
ASAP!!!
What should also be exchanged before the hearing and how soon before the hearing?
Statement of costs application should be filed and exchanged not less than 24 hours before the hearing
Can a hearing for an interim application take place by telephone?
Yes esp if hearing expected to last no more than one hour
When can matters be dealt with in absence of a hearing?
If:
- Parties have agreed terms of order
- Parties agree there should be no hearing
- Court does not consider hearing appropriate
If parties have agreed terms of order, what must they send in?
A consent order signed on behalf of each party
What happens once a court has made a decision?
Order drawn up, sealed and served
Summary of an interim application procedure?
General; unmodified (ON NOTICE)
- Issue - application notice, supporting evidence, draft order, fee
- Service as soon as practicable but not less than 3 days before hearing - app notice, supp evi, draft order, notice of hearing date
- Further evidence ASAP by both parties
- Statement of costs exchanged not less than 24 hours before hearing
3 DAYS, ASAP, ASAP
In what circumstances will an application ‘without notice’ be permitted?
I.e. without serving application notice on respondent
- Exceptional urgency (e.g. remedy required immediately)
- OO is best furthered by doing so
- All parties consent
- Court gives permission
- Court order, rule or PD permits
- Party does not have sufficient time to serve application notice if a date for hearing has been fixed and party wishes to make application at that hearing (should still inform other party and court the nature and reason of application)
What procedural safeguards are in place for without notice hearings?
To mitigate unfairness of making application without notice
- Application must explain why no notice given
- Applicant must draw court’s attention to arguments, evidence in support of absent respondent’s position even if adverse to theirs (full and frank disclosure)
- Applicant must serve respondent ASAP after hearing whether or not court granted relief sought (app notice, supp evi, order)
- Court order must contain statement of respondent’s right to make application to set aside/vary order
If the respondent chooses to, when must they make an application to set aside?
Within 7 days of order being served on other party
What is a summary judgement and what is the effect if it is granted?
Summary judgement = type of interim application
- Enables court to dispose of claims/issues without need for a full trial
- If granted = issue is no longer considered at trial
Furthers OO; allows court to deal with weak cases/issues proportionately and expeditiously
How is a summary judgement different from a strike out or default judgement?
- Summary judgement = where party has no real prospect of succeeding on claim or defence
- Default judgement = procedural; potential consequence of D failing to respond to a claim (merits not considered)
- Strike out = whole/part of SOC which discloses no reasonable grounds for bringing/defending claim or is an abuse or process/will obstruct just disposal of proceedings
What are the 2 grounds for summary judgement?
- C/D has no real prospect of succeeding on/defending; and
- There is no other compelling reason why case/issue should be disposed of a trial
What is meant by ‘no real prospect’? How high is the threshold?
- No real prospect = position is fanciful, imaginary or false
- Low threshold; respondent only need show that there is some chance case will succeed even if improbable
What ‘compelling reasons’ might there be for the case/issue to be disposed of at trial?
- D needs more time to investigate
- Expert evidence required
- Multi-party litigation
- Scrutiny of key docs needed
- D has right to trial by jury (e.g. fraud)
What evidence is (usually) required for a summary judgement application and what must it address?
A witness statement - should address:
- The 2 grounds
- Concisely any point of law/provision in document on which applicant relies; and
- That application is made because applicant believes on the evidence that respondent has no real prospect of success and knows of no other compelling reason why claim/issue should be disposed of at trial
When can a C or D apply for a summary judgement?
- C = after D has filed ack of service or defence
- D = anytime after proceedings have commenced
Can a C apply for summary judgement before D has filed ack/defence?
Yes - with court’s permission
Can a court fix hearing for summary judgement of own intiative?
Yes
What is the effect of C failing to comply with relevant pre-action protocol on their application for summary judgement?
Application will not be considered before defence filed/time for doing so has expired
Ideally, to avoid incurring unnecessary costs, when should an applicant apply for summary judgement?
Before or at same time as filing directions questionnaire
What will the court do if an application for summary judgement is made on the directions questionnaire?
Delay allocating the matter to a track until after summary judgement hearing
What is the effect of a summary judgement on proceedings as a whole? What is the effect of this on D in the case of D themselves or C applying for summary judgement?
Creates a pause in the proceedings whilst application being decided
- If C applies = time for D to file a defence extended (until after SJ hearing)
- If D applies = do not have to file ack of service/defence until after SJ hearing
How does the normal process for interim applications change in the case of summary judgement applications?
Normal process = 3 days ASAP ASAP (+ all relevant docs)
- Application notice, supp evi, draft order and notice of hearing date must be served 14 days before hearing (not 3 days/as soon as practicable)
- Respondent must serve further evidence at least 7 days before hearing (not ASAP)
- Applicant must serve reply to further evidence at least 3 days before hearing
Exchanging statements of costs remains the same (not less than 24 hrs)
For an application notice (for SJ) being sent to a respondent, what must the notice include and direct?
- Include statement that it is an application for SJ
- Direct the respondent’s attention to CPR requiring respondent to file and serve evidence at least 7 days before SJ hearing
Provisions make clear to respondent what is at stake and how they can oppose (application for SJ can have particularly significant potential consequences)
What are the potential orders at a summary judgement hearing?
- Dismissal of application (application fails and issues continue to trial)
- Dismissal of claim (where D applies for SJ and succeeds = D wins)
- Judgement on claim (where C applies for SJ and succeeds = C wins and judgement entered)
- Conditional order
When will a conditional order be made?
Where judge decides that respondent may succeed but it is improbable; court refuses SJ and allows respondent to continue subject to conditions ordered by court (e.g. paying sum of money into court)
What is an interim payment?
A payment on account of damages, debt or other sum which a D may be held liable to pay C - C asks to assist financially in interim period prior to settlement/trial
What can an interim payment not be on account of?
Costs
What 1 of 3 conditions must be satisfied for an interim payment?
- D has admitted liability to pay damages to C
- D has not admitted liability but C has obtained judgement against D for damages to be assessed
- Is satisfied that, if claim went to trial, C would obtain judgement for substantial amount of money against D from whom he is seeking an order for an interim payment
Whether or not D is only one or several
Is interim payment only available where D has admitted liability or where judgement has been entered against D?
No - also available where C would obtain a judgement for substantial amount of money against D if the claim went to trial
What must evidence re interim payment deal with?
- Reasons for believing conditions for making interim payment are satisfied
- Sum of money for which final judgement is likely to be given
- Sum of money sought by way of interim payment
- Items/mattere in respect of which interim payment sought
- Any other relevant matters
- For PI - details of special damages and past and future loss
What would C request from D before making an application for interim payment?
A voluntary payment
In what period is C not able to apply for court for an interim payment?
Before the end of the period for D filing acknowledgement of service (not defence)
Does the rule that a C cannot apply to court for interim payment before the end of the period for D filing ack of service also apply to voluntary requests?
No - C can make a volutnary request for interim payment at any stage of proceedings (inc pre-action)
Can only one application for interim payment be made?
No - can make more than 1
What is the limit for an interim payment in terms of amount?
Court cannot make interim payment of more than reasonable proportion of likely amount of final judgement (taking into account contributory negligence, set-off or counterclaim)
Can order payment in instalments
What is the procedure for making an interim payment the same as?
Same as summary judgement, i.e. …
- Application notice, supp evi, draft order and notice of hearing date must be served 14 days before hearing (not 3 days/as soon as practicable)
- Respondent must serve further evidence at least 7 days before hearing (not ASAP)
- Applicant must serve reply to further evidence at least 3 days before hearing
When will an interim payment made by a D in the course of proceedings - whether by voluntary agreement or court order - not be disclosed to trial judge until?
Until all questions of liability and quantum have been decided
Who will make an application for security of costs and why, and what is the usual order?
- A D will make an application for security of costs where they are concerned that C would not be willing/able to pay D’s costs if the claim was successfully defended
- Usual order will be a payment into court by C
NB concerned with costs, not level of damages
Can a claim only be made by D against a C?
No, D against C is usual case but can also be:
- C against D re counterclaim
- TP against D re additional claim
What are the 2 grounds for security of costs?
- Having regard to all circumstances, it is just to make an order; and
- One or more of the prescribed conditions in the rules are satisfied
What are the 3 prescribed conditions for a security of costs order?
One or more must be the case
- C is resident out of jurisdiction but not resident in state bound by Hague Convention
- C is a company and there is reason to believe it will be unable to pay D’s costs if ordered to do so
- C has taken steps re assets that would make enforcement of costs order against it difficult (e.g. dissipation of assets, transfer overseas, put into name of TP)
Security = (not in) State
For = for Fiscal reasons a comapny cannot pay
Costs = the Cunt has dissipated his assets
What will ‘resident’ mean in the resident out of jurisdiction condition?
- Individual = their habitual/normal residence
- Company = where central management and control exercised
Rationale: D may have greater difficulty enforcing costs order if C not in jurisdiction
What states are bound by the Hague Convention and what does this mean for security of costs?
- UK, EU ms, Mexico, Singapore, Montenegro
- As there are limited reciprocal arrangements between these states, enforcement could be eased - so if said individual/company was residing in one of these states, condition not met
If the condition that the C is a company and there is reason to believe it will be unable to pay D’s costs is being used, what 2 things must D show?
- Company’s inability to pay costs; and
- The amount of likely costs
Must show company will be unable, not may
Must D show on a balance of probabilities that C (company) will be unable to pay? Will evidence from C to the contrary negate this condition?
No - only must be able to show there is reason to believe C will be unable to pay even if C can adduce substantial evidence to the contrary
What other conditions may be satisfied for the bringing of a security of costs application?
Re address
- C has changed address since claim commenced with a view to avoiding consequences of litigation
- C failed to give address in claim form
- C acting as normal C and reason to believe it will be unable to pay D’s costs if ordered to do so
If at least one of the prescribed conditions - not resident, impecunious company, taking steps - is made out, is the court obliged to give security for costs?
No - security will only be granted by the court if it is just to make such an order
What is the main consideration when deciding whether granting security is ‘just’?
Ability of the respondent to comply with any order for security for costs
How would the court be restricting the C’s access to the justice system by imposing a security of costs order?
One consideration when deciding if granting is ‘just’
If it made continuation of a C’s claim dependent on a condition (security of costs) which was impossible for C to fulfil
Difficult task of balancing injustice to C if prevented from carrying on with claim if it cannot pay security and injustice of D being at risk of costs if no security provided
What will make a security for costs application less likely to succeed?
Aside from considering ability to comply with order
- Admission of liability by D
- Delay in the application (should be made promptly)
- If D has been responsible for C’s financial difficulties
- Application being used oppressively (to stifle genuine claim)
What will make a security for costs application more likely to succeed?
Aside from considering ability to comply with order
Where a claim appears not to be genuine or has little prospects of success
Is the procedure for security of costs application the same as a summary judgement and interim payment?
I.e. 14 days before hearing > 7 days > 3 days
No - normal rules apply i.e. 3 days (as soon as practicable), ASAP, ASAP
What should the evidence supporting an application for security of costs take form as and cover?
Take form of witness statement which covers…
- The ground (e.g. impecunious company; show company accounts)
- The factors in exercise of court’s discretion
- Likely costs to trial
- Amount of security requested
Must the court grant the amount of security requested in the application for security of costs?
No, amount is entirely within the court’s discretion
What will the court take into account when deciding the amount of security?
- Amount of D’s likely costs
- Whole action or up to a point in time e.g. to disclosure
- Costs incurred (inc pre-action) and future costs
- Likely reduction upon assessment of costs
- Delay
What forms can the security of costs take?
- Payment into court (most common)
- Payment to D’s solicitor
- Bank guarantee
- Undertaking to pay costs
What is an interim injunction?
A temporary measure taken before trial/decision on case merits to restrain respondent from causing irreparable damage to applicant by continuing or ceasing conduct
Can an interim injunction be made in pre-action? How long will it last until?
- Can be made in pre-action
- Lasts until trial or further order
What is the difference between a prohibitory, mandatory, and quia timet injunctions?
- Prohibitory = requires respondent to refrain from doing act
- Mandatory = requires respondent to do a specific act
- Quia timet = allows both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed
Example of quia timet: a claim alleging that the threatened closure of a bank account would be a breach of statutory duty, the customer obtains an interim mandatory injunction requiring the bank to keep the account open
Where may an injunction be granted and what are the guidelines?
- May be granted where it is just and convenient
- The American Cyanamid guidelines are used to help court exercise discretion to grant interim injunction
What are the 3 steps in the American Cyanamid guidelines?
- Is there a serious question to be tried?
- Would damages be an adequate remedy for a party injured by the court’s grant of or failure to grant an injunction?
- Where does the balance of convenience lie?
In (all seriousness) - junc (money would be junk in this case) - tion (?)
Is the ‘serious question to be tried’ a difficult hurdle?
Step 1
No - only requires that there is a serious question to be tried on the balance of probabilities which is not ‘frivolous or vexatious’
Injunction is a remedy (not a cause of action) so applicant cannot sue for an injunction; must have a pre-existing cause of action
What are the 2 consecutive stages to considering whether damages would be an adequate remedy in the event of (not) granting an injunction?
Step 2
- Applicant’s POV - if applicant could be adequately compensated by damages for loss caused by refusal to grant interim injunction = court will refuse injunction
- Respondent’s POV - if respondent could be adequately compensated by applicant if it transpires injunction was wrongly granted = should be granted
When will damages be inadequate in step 1 of step 2? What is the consequence of this?
- Damages may be inadequate if respondent has no means of paying; or harm being caused is iireparable, cannot be quantified, or is serious and likely to continue
- If damages inadequate = continue to respondent’s perspective
What does the balance of convenience mean and when will it be considered?
Step 3
- Means balancing potential injustice to each party in deciding whether to grant (court considers a broad range of factors)
- Will be considered where damages would be adequate for neither party
Whatever carries lesser risk of injustice
As an injunction is an equitable remedy, what guidelines apply when deciding whether to grant one?
- Must serve practical purpose
- Applicant should come to court with clean hands
- Should be no excessive delay
If all guidelines are met, is there an automatic right to injunction?
No - injunction is a discretionary remedy
What must an application for an interim injunction be supported by?
Written evidence setting out facts to justify relief sought
What are justifications for an interim injunction application to be made without notice?
- Exceptional urgency (remedy needed ASAP)
- OO is best furthered by dong so
- All parties consent
- Court gives permission
- Court order, rule, PD permits
- Date for hearing fixed and party wants to bunch
What is the procedure for an interim injunction application? Are there any additional considerations?
Regular procedure for interim application, but additional procedural considerations include:
- Applicant’s undertaking re damages
- Without notice safeguards, and
- Applications before a claim is issued
What undertaking may have to be given by an applicant should the court decide to grant an interim injunction? Who is it made to?
A cross-undertaking made to the court to pay damages to respondent for loss sustained by the injunction if it is later held the applicant ought not to have been granted (e.g. if proceedings are discontinued, the injunction is discharged before trial, or if it is decided at trial that the applicant had not been entitled to restrain the respondent from doing what it was threatening to do)
May be conditional on the undertaking
Is a cross-undertaking limited to protection of the respondent?
No - may extend to any other person who suffers loss because of order
If an application is made without notice and an injunction is granted, how long is it granted for and what will the court fix?
- Is granted for a limited period only
- Court fixes a second hearing called the ‘return date’
What happens at and orders may be made at the second hearing (return date)?
Respondent can make representations, and court can make following orders:
- Maintain order (until trial)
- Discharge/vary terms of injunction
- Enforce applicant’s undertaking if it transpires it was wrongly granted
- Accept undertaking by respondent to not to acts in question in place of injunction
What type of disclosure must an applicant made in an application for interim injunction without notice?
Full and frank; disclose all matters of fact/law relevant to application inc those adverse to applicant
As with any without notice interim application
What must applicant do after the without notice hearing?
Prepare a full note of hearing and serve on respondent (any other party affected) without delay
When can a party apply for an interim injunction before a claim form has been issued and what must it undertake to do?
- Only when matter is urgent or otherwise desirable in interests of justice
- Applicant must undertake to the court to issue a claim form immediately
Summary of application process for each kind
Default rules = 3 days, ASAP, ASAP
* Summary judgement = 14 days, 7 days, 3 days
* Interim payments = 14 days, 7 days, 3 days
* Security of costs = default rules
* Interim injunction = default rules + undertaking
Su-mmar-y + int-er-im = both 3 syllables as last day will be 3 days (not including interim injunction because there time is of the essence)
