Interim Applications

Question 1

When are interim applications made?

Answer 1

Between issue of proceedings & trial - to obtain directions from court to push matter forwards or seek particular remedy

Question 2

What sets out the general rules for interim applications?

Answer 2

Part 23 CPR

Question 3

How does an applicant make an interim application?

Answer 3

Form N244 with:
1. Witness statement including factual info/evidence in support + anticipate opponent’s case
2. Draft order

Must be served on opponent at least 3 clear days before court hearing

Question 4

How will an interim application with a time estimate of 1 hour or less be conducted?

Answer 4

By telephone if possible (unless if application without notice)

Question 5

Do the parties need to attend a hearing for a consent order?

Answer 5

No (because with consent order, have reached agreement on order they require before they apply)

Question 6

When can an interim application be made without notice?

Answer 6

If there is exceptional urgency or the overriding objective is best achieved by making order without notice (eg. applying freeze financial assets)

Must serve court order, application, any supporting evidence on respondent as soon as practicable to do so → respondent may apply to set aside or vary order within 7 days of service

Question 7

What is the time limit for a respondent to apply to set aside or vary an interim application made without notice?

Answer 7

Within 7 days of service of the order etc. on the respondent

(Must be served by applicant as soon as practicable to do so)

Question 8

What are three possible interim costs orders that can be made at the end of the interim application heraing?

Answer 8

[Winning party’s] costs

Costs in the case

No order

Question 9

What is the likely interim costs order if there is a clear winner?

Answer 9

[Winning party’s] costs ie. winner entitled to costs of interim application

Usually summarily assessed (ie. immediately) & ordered to be paid within 14 days

Question 10

What is the likely interim costs order if the court makes a conditional order?

Answer 10

Costs in the case

ie. Neither party can recover costs yet - ultimate loser at end of proceedings will be liable

Question 11

What is the likely interim costs order if the outcome of the interim application is a ‘draw’ (ie. neither party at fault)?

Answer 11

No order

ie. Each party bears own costs of interim application, regardless of what costs order made at end

Question 12

What are the grounds for a summary judgement?

Answer 12

Court may give summary judgement on whole of claim or particular issue if:

(a) It consider that claimant has no real prospect of succeeding or defendant has no real prospect of successfully defending claim

and

(b) There is no other compelling reason why case should be disposed of at trial (eg. need more time, case complicated, need to hear from witnesses)

Question 13

What is the procedure for applying for summary judgement?

Answer 13

Applicant files & serves Form N244 + witness statements at least 14 days before hearing

↓

Respondent files & serves own evidence at least 7 days before hearing

↓

Applicant may file & serve further evidence at least 3 days before hearing

Question 14

What happens if the claimant’s application for a summary judgement is granted?

Answer 14

Defendant pays claimant’s costs + judgement entered & proceedings end

Question 15

What happens if the defendant’s application for summary judgement is granted?

Answer 15

Claimant pays defendant’s costs + claim dismissed & proceedings end

Question 16

What happens if an application for summary judgement is dismissed?

Answer 16

Loser pays winner’s costs & proceedings continue

Question 17

What happens if a conditional order is granted in a summary judgement hearing?

Answer 17

Costs in the case & case proceeds if condition is satisfied

Conditional order: court concludes it is possible, but not probable, that claim/defence may succeed

Question 18

Who can apply for an interim injunction?

Answer 18

Either party

Question 19

What is the purpose of an interim injunction?

Answer 19

To maintain current position until trial, where damages not adequate remedy

Nb. breach punishable with contempt of court

Question 20

What are the factors considered by the court to determine whether an interim injunction should be granted?

Answer 20

American Cyanamid guidelines - whether:

a. There is a serious question to be tried;

b. Damages are adequate remedy;

c. Balance of convenience lies in favour of granting or refusing injunction;

d. Any special factors

Question 21

What is the procedure for applying for an interim injunction?

Answer 21

Application notice with evidence in support (usually witness statement)

If granted, lasts until trial

Can be made without notice if there is good reason to do so

Question 22

When can an interim injunction be made without notice, & what form will it take?

Answer 22

If there is good reason to do so (insufficient time, notice would enable D to harm C etc.)

→ Two possible forms:
I. Court may fix date for further hearing with all parties present (injunctions lasts until date of hearing)
II. Injunction informs defendant they can apply w/ notice for order to be varied/set aside (lasts until trial)

Question 23

When will a freezing injunction be granted?

Answer 23

Where court satisfied that:

a) Applicant has good arguable underlying claim; and

b) Real risk respondent will dispose of their assets; and

c) Applicant has sufficient evidence of existence & location of assets

Made without notice to High Court judge supported by affidavit

Question 24

When will a search order be granted?

Answer 24

Where court satisfied that:

1) Applicant has strong case; and

2) Applicant will suffer serious harm if order not made; and

3) Respondent has incriminating materials in their possession which can’t be obtained by other means

Made without notice to High Court judge supported by affidavit

Question 25

What are interim payments?

Answer 25

Advance payment on account of any damages, debt or other sum (excluding costs) the defendant may be liable to pay

Question 26

What are the grounds for interim payment?

Answer 26

I. Defendant has admitted liability; or

II. Claimant has obtained judgement against defendant for damages to be assessed / other sum of money; or

III. Court satisfied that, if case went to trial, claimant will obtain judgement for substantial amount

Question 27

What is the procedure for applying for an interim payment?

Answer 27

Application notice (incl. amount requested & why + amount likely awarded at final judgement) served at least 14 days before hearing
⇣
If respondent wishes to counter, must serve evidence at least 7 days before hearing
⇣
Applicant may serve further evidence at least 3 days before hearing

Question 28

When can an application for interim payment be made?

Answer 28

Any time after the time for acknowledging service has expired

Question 29

Is a trial judge told about an interim payment order?

Answer 29

Only after they have determined all issues of liability & quantum

Question 30

If the court decides an interim payment order should be made (which is at their discretion), what will the amount be?

Answer 30

A figure which is indisputably due to the claimant & then determine what defendant is able to pay

Can’t order sum or more than reasonable proportion of likely amount of final judgement, taking into account contributory negligence & any counterclaim