Interim Applications

Question 1

What is an interim application in broad terms?

Answer 1

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

Question 2

What documents must the applicant prepare and file at court to make an interim application?

Answer 2

• 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

Question 3

What is a skeleton argument?

Answer 3

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

Question 4

What is a with notice application?

Answer 4

An application where the applicant gives notice of the hearing to the respondent prior to the relevant court hearing

Question 5

What is a without notice application?

Answer 5

Application where the applicant does not inform the respondent about the application or hearing until the court has already made an order

Question 6

What will happen when the applicant has filed the relevant documents with the court with a with notice application?

Answer 6

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

Question 7

What will happen with a with notice application once the court has issued the application?

Answer 7

• 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

Question 8

How will a with notice application conclude?

Answer 8

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

Question 9

When will a without notice application be allowed?

Answer 9

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

Question 10

What must the applicant do in a without notice application?

Answer 10

• 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

Question 11

What will the court do in considering a without notice application?

Answer 11

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

Question 12

What must happen if the court grants the interim application without notice and makes an order?

Answer 12

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

Question 13

What’s a summary judgment?

Answer 13

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

Question 14

What is the purpose of a summary judgment?

Answer 14

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

Question 15

What are the grounds for a successful summary judgment?

Answer 15

• 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

Question 16

What is required to meet the summary judgment ground of ‘the respondent has no real prospect of succeeding with the claim or defence’?

Answer 16

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

Question 17

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’?

Answer 17

• 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

Question 18

What is the procedure for an application for summary judgment?

Answer 18

• 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

Question 19

What orders may the court make following an application for summary judgment?

Answer 19

• judgment on the claim
• dismissal of the claim
• dismissal of the application
• conditional order
• costs order

Question 20

What is judgment on the claim following summary judgment?

Answer 20

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

Question 21

What conditional order is the court likely to hand down following an application for summary judgment?

Answer 21

Court will order that the claim can continue but subject to a particular condition being met such as defendant filing proper defence with court

Question 22

What costs orders will the court make following an interim application?

Answer 22

• 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

Question 23

Does the applicant need permission to make an application for summary judgment?

Answer 23

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

Question 24

What is an interim payment?

Answer 24

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

Question 25

What happens if any interim payment is made?

Answer 25

It can be offset against any amount the claimant is eventually awarded

Question 26

When should the claimant consider making an application for the court to order an interim payment by the defendant?

Answer 26

Only when they have asked the defendant to make one on a voluntary basis and they have refused

Question 27

What grounds must the claimant make out for a successful application for an interim payment?

Answer 27

• the defendant has admitted liability to pay damages or some other sum of money to the claimant
• the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed
• the court is satisfied that if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant, from whom they are seeking an order for an interim payment

Question 28

What is the procedure for making an application for an interim payment?

Answer 28

• the applicant prepares and files an application notice requesting an order for an interim payment to be made with an accompanying witness statement explaining why they believe the grounds are 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 seven days before the hearing
• the applicant can the 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

Question 29

What is an interim injunction?

Answer 29

An order that requires a party to either do something specific or refrain from doing something specific pending a full trial taking place

Question 30

What guidelines will the court consider in deciding to grant an interim injunction?

Answer 30

• is there a serious issue to be tried?
• would damages be an adequate remedy?
• where does the valance of convenience lie?
• are there any other special factors?

Question 31

When will there be a serious issue to be tried in relation to granting an interim injunction?

Answer 31

Claimant needs to satisfy the court that the claim is not imaginary, frivolous or vexatious

Question 32

When will damages not be an adequate remedy in relation to granting an interim injunction?

Answer 32

• when the respondent is not able to pay them
• where the claimant would suffer serious damage that can not be compensated financially alone

Question 33

What is the balance of convenience in relation to granting an interim injunction?

Answer 33

Court will consider what part will suffer the biggest inconvenience - the claimant is the injunction was not granted or the defendant if the injunction was granted

Question 34

How long will an interim injunction last for?

Answer 34

Will last until trial

Question 35

If the interim injunction is granted without notice what will the court do?

Answer 35

The court will either:

• grant the injunction temporarily but list the matter for a full hearing with both parties present and able to argue their case

OR

• grant the injunction but inform the defendant that they can make an application to set aside the order within seven days of the order being made

Question 36

What is interim freezing injunction?

Answer 36

An order that prevents the respondent of the application from disposing of their assets before trial. A respondent would would usually do this if they were trying to protect their wealth and assets from being paid or transferred to the applicant in the event of a successful claim

The applicant must show that there is a real risk of the defendant dissipating their assets

Question 37

What is an interim search order?

Answer 37

An order that allows an applicant to enter the premises of the respondent to search for and take copies of evidence required for a court case