Interim Applications Flashcards
What is an interim application in broad terms?
An application made to the court by one of the parties to litigation after a claim has been commenced but before it has reached trial
What documents must the applicant prepare and file at court to make an interim application?
- application form which requests the court to make an order or direction and specifies what type of order or direction the application would like the court to make
- draft order, which is a draft of the order the applicant would like the court to make
- evidence - generally in the form of a witness statement. This should include details of why the order or direction is being request and should include evidence to support the facts that are being relied upon
- skeleton argument but only if the claim is in the High Court
What is a skeleton argument?
It is a written document provided to the court in advance of a hearing which summarises the factual and legal issues involved, the arguments that are being submitted in relation to those issues and any legal authorities the party will be relying upon
What is a with notice application?
An application where the applicant gives notice of the hearing to the respondent prior to the relevant court hearing
What is a without notice application?
Application where the applicant does not inform the respondent about the application or hearing until the court has already made an order
What will happen when the applicant has filed the relevant documents with the court with a with notice application?
The court will then issue the application and send out a notice to the parties informing them of the time and date of the hearing
What will happen with a with notice application once the court has issued the application?
- the application notice, draft order and evidence (including witness statement) must then be served on the respondent at least three days before the hearing date
- the respondent must then serve any evidence they wish to rely upon as soon as possible. There is no set timescale for the respondent to do this unless the court specifies one
- the applicant is then permitted to serve any evidence in response to the respondent’s evidence if they wish to do so
How will a with notice application conclude?
At a hearing where both parties can be present where the court will decide whether to grant the application and make the order or direction being sought by the applicant or to reject the application
When will a without notice application be allowed?
Only in exception circumstance where urgency requires it
Such as freezing injunctions where an applicant has genuine grounds to believe that a respondent will deliberately dispose of their assets to avoid paying a debt
What must the applicant do in a without notice application?
- the applicant must explain to the court in great detail and with evidence why notice has not been given
- provide the court with a witness statement setting out all of the facts, whether they are favourable to the application or not
What will the court do in considering a without notice application?
They will scrutinise the information and evidence they receive carefully before making an order as the respondent does not have the opportunity to put forward their own arguments
What must happen if the court grants the interim application without notice and makes an order?
The applicant must serve on the respondent the application notice, evidence, court order and a brief statement explaining the respondent’s right to have the order set aside within seven days of it being granted
The court may also set a date for the matter to return to court for a full hearing with both parties ordering that the injunction remains in place until the date of the next hearing for example
What’s a summary judgment?
An application for summary judgment can be made by either party, and if successful has the effect of concluding a part of or an entire case before trial
What is the purpose of a summary judgment?
Allows a party who is on the receiving end of a weak claim or defence to request the court to order that either part of or the whole of the relevant statement of case be disposed of
What are the grounds for a successful summary judgment?
- the respondent has no real prospect of succeeding with the claim or defence
AND
- there must be no other compelling reason why the claim should proceed to trial
What is required to meet the summary judgment ground of ‘the respondent has no real prospect of succeeding with the claim or defence’?
A high standard - essentially means that the respondent’s prospect of success must be close to imaginary.
Even if it is unlikely that the respondent will be successful, this will be enough for this ground not to be met and for the court to refuse the application
What are compelling reasons with regards to the summary judgment ground of ‘there must be no other compelling reason why the claim should proceed to trial’?
- complex facts (the court will not allow summary judgment where the facts of the claim are overly complex or technical and require a full hearing)
- the defendant requires more time to investigate the claim made
- expert or further witness evidence is required to make a proper determination on the claim
What is the procedure for an application for summary judgment?
- the applicant prepares and files an application notice requesting an order for summary judgment to be made with an accompanying witness statement explaining why they believe the two-stage test laid out in Part 24 is met
- the respondent must then be given at least 14 days’ notice of the hearing date and is required to serve any written evidence at least 7 days before the hearing
- the applicant can then file and serve any further written evidence (this is usually evidence that shows the respondent’s position to be factually or legally incorrect) no later than three days before the hearing
What orders may the court make following an application for summary judgment?
- judgment on the claim
- dismissal of the claim
- dismissal of the application
- conditional order
- costs order
What is judgment on the claim following summary judgment?
Where claimant has brought application against the defendant and the court gives judgment in the claimant’s favour as they have met both of the Part 24 criteria. The claim will not proceed to trial
What conditional order is the court likely to hand down following an application for summary judgment?
Court will order that the claim can continue but subject to a particular condition being met such as defendant filing proper defence with court
What costs orders will the court make following an interim application?
- one party pays the other party’s costs of the application. Will usually be the losing party ordered to pay.
- costs be in the case. Means costs deferred until alter date
- no order as to costs. Each party bears their own costs for application. Eg where no clear winner
- wasted costs order - where legal representative have to pay the legal costs due to their own poor levels of conduct in dealing with the application
Does the applicant need permission to make an application for summary judgment?
The court does not need give the applicant permission unless it is being made by the claimant prior to the defendant filing an acknowledgement of service and defence
What is an interim payment?
Is an amount paid by a defendant to a claimant ‘on account’ before the court has made its final decision at trial.
Typically happens where D admits liability for claim and understands they will need to pay claimant something but quantum is yet to be decided
