Interim Applications Flashcards
What are interim applications?
Applications by applicants for orders for directions against a respondent, usually made between the commencement of proceedings and trial but also any time during or before commencement.
What is the procedure for issuing an interim application?
Application notice (Form 244) + draft order + evidence + court fee must be served as soon as practicable but not less than 3 clear days before hearing.
* Respondent and applicant further evidence asap
* Statement of costs not less than 24 hours before hearing.
Different rules for interim payments and summary judgment.
When can an application be made without notice to the respondent?
- Exceptional urgency;
- Overriding objective best furthered by no notice;
- All parties consent;
- Court gives permission;
- Court order, rule or PD permits
- Applicant does not have sufficient time - in this case, applicant should still inform respondent and court of nature + reason for app.
Which procedural safeguards must be followed for without notice apps?
- Explain why no notice given;
- Draw court’s attention to the arguments and evidence in favour of the respondent;
- Inform the respondent of the application informally unless secrecy is essential.
- Serve the respondent asap after hearing regardless of the outcome.
- Court order must note the respondent’s right to apply to set aside or vary the order within 7 days.
What is a request for further information? (CPR 18)
C / D should seek information on a voluntary basis and if refused, can apply to court.
Court can order information to be provided limited to matters reasonably necessary + proportionate to enable party to prepare its own case / understand it has a case to meet.
To obtain admissions, weaknesses in other side claim, facts, details of witness, narrow issues to save time /costs.
Application is interim and if other side has not responded within 14 days, without notice interim app can be made.
What is an interim payment order?
A payment on account of damages, debt or another sum (except costs) which a DEFENDANT may be held liable to pay to a CLAIMANT.
Which conditions must be satisfied for an interim payment order?
Either:
- D admitted liability to pay damages / other money to C;
- C obtained judgment against D for damages to be assessed;
- Court is satisfied that if claim went to trial, C would obtain judgment against D for a substantial amount.
Procedure: Interim Payments
C cannot apply to court before end of period for D filing AOS / defence.
- File N244 (app notice), draft order, evidence and fee 14 days before hearing
- Resondent files and serves further evidence on court / application at least 7 days before hearing
- Applicant files and serves response at least 3 days before hearing
- Exchange of costs order at least 24 hours before hearing
Interim payment not disclosed to trial judge until liability and quantum are determined (CPR 25.9).
What is a security for costs application?
An application by a defendant concerned that the claimant will not be willing or able to pay costs if the claim is successfully defended.
May be app by claimant against defendant in respect of counterclaim.
Can ask for payment into court, to Ds solicitor, bank guarantee or undertaking to pay.
What are the grounds for making an application for security of costs?
- It is just to make an order having regard to all the circumstances; AND
- (a) Claimant resident out of jurisdiction or Hague country (UK, EU, Mexico, Singapore, Montenegro);
(b) Claimant is company + reason to believe it will not pay (not as high as balance of probabilities);
(c) Claimant has taken steps in relation to assets that would make enforcement of costs order difficult;
(d) Claimant changed address since claim commenced with view to evading consequence of litigation;
(e) Claimant failed to give address in claim form;
(f) Claimant is nominal claimant + there is reason to believe it will be unable to pay.
ALL THE CIRCUMSTANCES = => main consideration is ability of respondent to comply with order for security of costs.
=> delay to app
=> claim which appears not genuine
=> D responsible for Cs difficulties
What are interim injunctions and when can they be granted?
Temporary orders at an early stage in proceedings to restrain conduct causing irreparable damage to the applicant by continuing or stopping conduct leading to the dispute.
It is a discretionary remedy + equitable principles apply.
May be prohibitory or mandatory.
What are the requirements for granting an interim injunction?
- Just and convenient
- Serious question to be tried
- Damages would be an inadequate remedy
- Balance of convenience falls in favour of the applicant (risk of injustice for not granting it higher than for granting it). May require cross-undertaking.
What is summary judgment and when will the court grant it?
Court can use power to dispose of weak claims, issues or cases without need for full trial.
Granted where there is no real prospect of a claim or defence succeeding + no other compelling reason why it should go to trial (i.e D needs more time to investigate, expert evidence needed, scrutiny of key docs needed).
What is the procedure for, and effect of, summary judgment?
Creates pause in proceedings whilst application decided so, if granted before D files defence, time is extended.
=> C can apply after D has filed AOS / defence or earlier with court permission.
=> D can apply any time after proceedings commence.
App may be dismissed, claim may be dismissed, judgment may be made on claim (claimant wins) or conditional order.
What will the court consider when deciding whether to grant relief from sanction?
(a) Is the breach significant and serious - failure to pay court fee or submit costs budget on time is not. But breach which pushes back hearing would be.
(b) Reason for default
(c) All the circumstances of the case = conduct, overriding objective, whether the application for relief was prompt.
