Interim Applications

Question 1

What is an interim application?

Answer 1

If something happens during the proceedings, and bring a matter before the court ALONG THE WAY, then applications are made AFTER litigation starts, but BEFORE trial - interim applciations.

Question 2

What is the 4 purposes of interim applications?

Answer 2

To ensure compliance with procedural matters

To request more time

To assist in preparation for trial

To consider penalties

Question 3

What does Part 23 set out?

Answer 3

part 23 CPR sets out general rules governing applications to the court.

Question 4

What is the procedure for interim applications?

Answer 4

Before applying, parties should seek to resolve matters themselves - to avoid cost penalties.

Under Part 23, the party who is applying must complete an application notice - N244. They are the applicant.

Question 5

Which court do you send the N244 to?

Answer 5

Must be made to the court wehre the claim started, or where its been transferred

Question 6

What happens if there is not enough space on the N244 to explain?

Answer 6

A witness statement is added and filed at the same time. Party pay also rely on contents of statement of case - such as POC.
Statement of truth is needed.

Question 7

What should a witness statement for N244 include?

Answer 7

Factual information and evidence in support of the application
Anticipate the opponents case.

Question 8

When should a draft order be attached to N244?

Answer 8

Direction 23A states applicant should always, except in the most simple applications, in order to assist the judge

Question 9

When must N244 be served ?

Answer 9

Application notice must be served at least 3 clear days before the court hearing to allow the other party to respond and to object to the application.

Question 10

What happens if an N244 order is made without notice to the other party?

Answer 10

General rule is that applciations must be made with notice, to ensure they are aware and can rule evidence.

HOWEVER, there are 2 exceptions:

1. There is an exceptional urgency
2. The overriding objective of teh CPR would be best achieved by making an order without notice. (Freezing assets, searching premises etc)

Question 11

If an order is made on application without notice, what documents must be served on the respondent AS SOON AS PRACTICABLE?

Answer 11

The court order
The application notice
Any supporting evidence

Question 12

What are the 3 documents needed for an interim application?

Answer 12

Form 244
Witness statement
Draft order

Question 13

What are interim costs?

Answer 13

They are the costs that are included in any interim application made. - connecting evidence, preparation the notice of applciation, supporting witness statement - court fee al included.

Question 14

How are interim costs decided?

Answer 14

The judge will decide the issue of costs at the end of the interim application.

General costs rule is that the loser pays the winners costs.

Question 15

When must the interim costs be paid?

Answer 15

Within 14 days of being assessed and ordered.

Question 16

What is summary judgement?

Answer 16

Once a claim has been served, there are 3 options for the defendant - do nothing, admit claim, or file full defence.

The D MAY file a WEAK defence - this may be because they are looking for additional evidence, or they are just buying time.

Part 24 allows the claimant to bring the matter to an EARLY CONCLUSION, whic is a summary judgement

Question 17

What is needed to be proved by the claimant for summary judgement?

Answer 17

24.2 states that the court can give summary judgement ont eh whole claim or part, if:

The claimant has no real prospect of succeeding on the caes, or
The defendant has no real prospect of successfully defending the claim, and

There is NO OTHER compelling reason why the case should be disposed of at trial.

Question 18

What does the court consider to determine a party has no real prospect of success?

Answer 18

The court will consider the evidence. This will vary.
Responsibility falls on the court to WEED out the hopeless cases.

Question 19

What reasons would be compelling reasons why case should be disposed of, for summary judgment?

Answer 19

The need to allow more time for matters to be investigated (need to contact a witness etc)

The claim or defence is HIGHLY complication and technical in nature

The need to hear from witnesses

Question 20

What is the difference between claimant and defendant during summary judgment?

Answer 20

A claimant applicant has to prove that the D has BOTH a no real prospect of successfully defend king, AND that there is no other compelling reason.

A defendant respondent need ONLY success in preventing the claimant for proving ONE aspect, to ensure dismissal of the application for summary judgement

Question 21

What is the procedure for summary judgement?

Answer 21

Can be made at any time.

Applicant applies with form N244, and witness statement in support

Respondent must be given 14 days notice of the hearing date, and file and serve any written evidence at least 7 days before the hearing.

Question 22

What are the possible orders that can be given on summary judgement? (4)

Answer 22

Judgment on claim
Striking out or dismissal of claim
Application is dismissed
Conditional order

Question 23

What is the order of judgment on claim for summary judgment?

Answer 23

Means that the claimant has succeeded in their application. Matter proceeds to enforcement

Question 24

What is striking out or dismissal of claim?

Answer 24

The defendant has SUCCEEDED in their application to dispose of the claimants claim, and the case has COME TO AN END.

Question 25

What is a conditional order for summary judgment?

Answer 25

Application has not been granted, by the respondent has not succeeded in having it dismissed - neither side has won.

Question 26

How are costs distributed for summary judgment?

Answer 26

Depends on the claim and outcome.

Where claimant succeeds, the court may award fixed costs under Part 45. However, it is open to the claimant to request a higher figure.

If claimant is awarded summary judgment in unspecified claim, usual rule is that the WINNER is granted the costs.

If applicaiton is dismissed, loser pays winners costs.

Question 27

What are interim injunctions?

Answer 27

Under Part 25 - the court has wide powers to grant various interim remedies - including interim injunctions

Question 28

Who can apply for interim injunctions?

Answer 28

Either party can apply, in support of their cause of action

Question 29

When can you apply for interim injunctions?

Answer 29

A party can seek an injunction at any time after proceedings have been commenced. However, court must be satisfied that the matter is URGENT.

If granted before trial, these orders are known as interim injunctions. The remain in force until the matter comes to trial.

Question 30

What is an interim injunction?

Answer 30

Injunctions are different from court orders, because breach is punishable as a contempt of court.

They are DISCRETIONARY remedy, and may ONLY be granted when damages are NOT an adequate remedy for the applicant.

There are differnet types of injunctions, but the PRIMARY AIM is to MAINTAIN status quo (current position), until the trial.

They will be used to PREVENT the Defendant from taking certain steps, but can also order them to take action

Question 31

What are the guidelines set by the court, when hearing an interim injunction?

Answer 31

The court doesnt know all the facts of the case, therefore they rely on guidelines.

American Cyamanid Co v Ethicon

Court will determine whether:

• there is a serious question to be tried
• damages are an adequate remedy for either side
• balance of convenience lies in favour of granting or refusing the injunction
• whether there are any special factors

Question 32

What is a cross undertaking in an interim injunction?

Answer 32

Application must undertake to the court to pay any damages that the respondent sustains, by reason of the injunction.

Question 33

What is the procedure for interim injunction WITH notice?

Answer 33

Usually obtained on notice, so D has prior warning of the hearing. They last until the trial of hte claimants action, unless they ar set aside earlier by the court.

Question 34

What is the procedure for orders of interim injunction obtained WITHOUT notice?

Answer 34

Part 25 - court may grant an interim remedy on application made without notice, if there are good reasons (insufficient time enable D to harm C in some way).

2 ways for injunction without notice:

• court may fix a date for a further hearing with all parties present.
• rather than fixing a hearing date, an injunction made without notice is just to tell the D taht they may apply on notice for the order to be varied or set aside.

Question 35

What are examples of injunctions that can be made without notice?

Answer 35

Freezing injunctions (stop assets being transferred from jurisdiction)

Search orders

Question 36

What is an interim payment?

Answer 36

This is advance payment on accounts of any damages, debt or other sums, that a defendant may be held liable to pay.

Question 37

What does an interim payment help the claimant do?

Answer 37

Enables a claimant who has a strong case on liability, to avoid the financial hardship /inconvenience that might otherwise be suffered because of any delay during the period between the start of the claim and its final determination.

Question 38

What is the procedure for interim payments?

Answer 38

Application notice must be served 14 days before the hearing date.

Evidence must be provided, and set out the amount requested and what it will be used for, the amount of sum of money that is LIKELY to be awarded at final judgement, and the reason fo believing that the grounds required are satisfied

Question 39

What grounds in part 25 must be satisfied before the court will make an interim payment?

Answer 39

A. Defendant has admitted liability

B. The claimant has obtained a judgement against the D for damages to be assessed or for a sum of money

C .The court is satisfied that if the case when to trial, the claimant would obtain judgement for a substantial amount of money.

Question 40

What is the burden for (c) of interim payment application?

Answer 40

(C) is that the applicant must provide that if the case went to trial, the claimant would obtain judgment for a substantial amount of money.

The burden is high, they must prove on the balance of probabilities that they WILL succeed, and it is not enough that the court considers it likely they will do so.

Question 41

What are orders for interim payment, and what are 2 questions that the court has a discretion to answer?

Answer 41

Should an order for interim payment be made? If issues are complicated, or raise difficult questions of law, court may decide not to order an interim payment at all.

If yes, what should the amount be? If applicant succeeds, court can order a sum of MORE than a reasonable proportion of likely amount.

Question 42

What must the courts take into account when determining the value for an interim payment?

Answer 42

They must take into account contributory negligence and any counterclaim.

Question 43

Is the trial judge told about any interim payments?

Answer 43

No, they are not told about any interim payment order or voluntary payment until after they have determined all issues of liability and quantum, UNLESS the D consents.