INTERIM APPLICATIONS Flashcards
WHATIS AN INTERIM APPLICATION?
- An interim application is any application made to the court
that requires a judicial decision. - All interim applications are procedural
in nature, that is, the party making the application must fully
comply with the rules relating to the particular type of appli-
cation
3.
PROCEDURE FOR MAKING AN APPLICATION
*The application should be made as soon as it is apparent
that it is necessary or desirable;
*If possible, the application should be made and heard at
any hearing already listed, for example, at a case man-
agement conference;
*A party should apply to the court where the action is pro-ceeding. If a trial is fxed, it should be to the trial court;
*The application should be on at least three days’ notice
to the other party (fve days if by telephone) unless there
is good reason why notice should not be required (this
means that the application should be served on the other
side prior to the hearing so that they have an opportu-
nity to serve evidence and attend the hearing to argue
against the application being granted);
*In any case, all evidence relied on in support of the ap-
plication should be in writing and fled at court along with
the notice and required fling fee within the above time
limits;
*For time limit purposes, an application is treated as
having been made on the date on which the application
notice and fee are received by the court; and
*The applicant should fle and serve a case summary and
proposed draft order no later than two days before the
hearing.
CALCULATION OFTIME FOR
SERVICE OF APPLICATION NOTICE AND SUPPORTING EVIDENCE
the following are not included: (1) the day on which the period begins and (2) if the end of the period is defned by reference to an event, the day on which that event occurs).
WHEN IS NOTICE UNNECESSARY?
giving notice may de-
feat the purpose of an application or create an injustice. **This may apply with search orders and freezing orders because if the other party is given notice of such orders, they might hide or dispose of the object of the application before the application can issue.
PROCEDURE ON APPLICATION WITHOUT NOTICE
*If an order is made on the without-notice application, it
must be served on the defendant together with the ap-
plication notice and supporting evidence. The defendant
then has seven days in which to make an application to
vary or set aside the order.
*If a party makes an application without notice** errone-
ously**, the court is likely to dismiss it with a wasted costs
order (that is, an order that the solicitor—not the par-
ty—pay the other side’s legal costs associated with the
application).
EXAMPLES OF INTERIM APPLICATIONS
Setting Aside Default Judgment
Summary Judgment
Injunction
Setting Aside Default Judgment
a party can obtain a default judgment when a defendant fails to acknowledge service or fle a defence in time. The claimant will either fle
a request for judgment with the court or make an application for a default judgment. The defendant, however, can apply to the court to set aside the judgment as an interim application.
Summary Judgment
-
**A claimant or defendant may apply for summary judgment
any time during an action - Such an application asks the court to enter judgment for the applicant** without proceeding to trial. **
- The applicant must show that the other party has** no
real prospect of success and there is no other compelling
reason **why the case should proceed.
4.An application for summary judgment can be com-
bined with an application to strike out the claim.
STRIKE OUT APPLICATIONS
If the court determines that the claimant or defendant have no ‘reasonable’ grounds for bringing the case or defending it, or there has been an abuse of process or the Civil Procedure Rules have not been complied with, the court will grant the strike out application.
EXAMPLE
A claimant serves a claim form on a solicitor claiming profes-sional negligence. The Particulars contain no allegations of negligence against the solicitor. The solicitor should make
an application to strike out the claim, as the Statement of
Case discloses no grounds for the claim. This is not an ap-propriate case for an application for summary judgment as it
is not simply a case that the claim lacks merit.
Timing ofApplication and Submission of Evidence A defendant cannot make an application for summary judg-
ment until the claimant has served the Particulars of Claim
and the defendant has served the acknowledgement or
defence.
- If the claimant applies for summary judgment following
acknowledgement of the claim, the defendant** need not
serve a defence before the hearing on the summary
judgment application** (although it may help to defeat the
application if the defendant appends any proposed de-
fence to the witness statement opposing the application).* - The applicant usually includes written evidence to support the application, which the applicant must serve on the other party at least 14 days before the hearing.
The defendant must serve evidence in response at least
seven days before the hearing. The claimant must serve
any evidence in reply no later than three days before the
hearing.
Exam Tip
Outcome of Application for summary judgment
If a claimant is successful on their application for summary
judgment, the court will order summary judgment on the
claim. If the defendant is successful on their application for
summary judgment, the claim will be struck out. If an applica-tion for summary judgment fails, the judge will probably give directions for the future conduct of the claim.
Application for an Interim Payment
An application for an interim payment is an application for the court to order some payment before the court has given a
fnal determination on the claim. Interim payments are always discretionary, and the court cannot award an interim payment if doing so would cause an injustice.
Grounds for Order
The grounds for an order of interim payment are:
*The defendant has admitted liability;
*The claimant has obtained judgment, but the sum to be
paid is not yet assessed;
*The court is satisfed that if the action proceeded to trial,
the claimant would obtain judgment for a substantial
sum; or
*If the claim is against two or more defendants, the court
is satisfed that if the action went to trial, the claimant
would obtain judgment for a substantial sum against at
least one and each defendant carries insurance.
Must Be Supported by Evidence
- The applicant must support the application by evidence, fled and served with the application.
- The applicant must serve
the application notice and evidence as soon as practicable,
but not less than 14 days before the hearing. The respondent must fle its written evidence at least** seven days before the hearing,** and the applicant can fle a reply up to three days before the hearing.
Timing/Invite to Make an Interim Payment
The applicant should always invite the respondent to make
an interim payment before making an application. The claim-
ant cannot make the application until the time for fling the
acknowledgement of service has expired.