INTERIM APPLICATIONS

Question 1

WHATIS AN INTERIM APPLICATION?

Answer 1

1. An interim application is any application made to the court that requires a judicial decision.
2. 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 application

Question 2

7

PROCEDURE FOR MAKING AN APPLICATION

Answer 2

1. The application should be made as soon as it is apparent that it is necessary or desirable;
2. If possible, the application should be made and heard at any hearing already listed, for example, at a case management conference;
3. A party should apply to the court where the action is proceeding. If a trial is fixed, it should be to the trial court;
4. The application should be on at least 3 days’ notice to the other party (5 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 opportunity to serve evidence and attend the hearing to argue against the application being granted);
5. In any case, all** evidence** relied on in support of the application should be** in writing** and** filed** at court along with the notice and required filing fee within the above time limits;
6. 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
7. The applicant should file and serve a case summary and proposed draft order no later than** two days before** the hearing.

Question 3

CALCULATION OF TIME FOR
SERVICE OF APPLICATION NOTICE AND SUPPORTING EVIDENCE

Answer 3

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).

Question 4

WHEN IS NOTICE UNNECESSARY?

Answer 4

giving notice may defeat 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.

Question 5

2

PROCEDURE ON APPLICATION WITHOUT NOTICE

Answer 5

1. 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 7 days in which to make an application to vary or set aside the order.
2. If a party makes an application without notice** erroneously**, the court is likely to dismiss it with a wasted costs order (that is, an order that the solicitor—not the party—pay the other side’s legal costs associated with the application).

Question 6

3

EXAMPLES OF INTERIM APPLICATIONS

Answer 6

Setting Aside Default Judgment
Summary Judgment
Injunction

Question 7

Setting Aside Default Judgment

Answer 7

1. a party can obtain a default judgment when a defendant fails to acknowledge service or file a defence in time.
2. The claimant will either file 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.

Question 7

2

Summary Judgment

Answer 7

1. A claimant or defendant may apply for summary judgment any time during an action
2. Such an application asks the court to enter judgment for the applicant** without proceeding to trial. **
3. 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 combined with an application to strike out the claim.

Question 8

STRIKE OUT APPLICATIONS

Answer 8

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 professional 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 appropriate case for an application for summary judgment as it is not simply a case that the claim lacks merit.

Question 9

4

Timing of Application and Submission of Evidence
A defendant cannot make an application for summary judgment until the claimant has served the Particulars of Claim and the defendant has served the acknowledgement or
defence.

Answer 9

1. 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 defence to the witness statement opposing the application).
2. 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.
3. The defendant must serve evidence in response at least seven days before the hearing.
4. The claimant must serve any evidence in reply no later than three days** before the hearing.

Question 10

Outcome of Application for summary judgment

Answer 10

1. If a claimant is successful on their application for summary judgment, the court will order summary judgment on the claim.
2. If the defendant is successful on their application for summary judgment, the claim will be struck out.
3. If an application for summary judgment fails, the judge will probably give directions for the future conduct of the claim.

Question 11

Application for an Interim Payment

Answer 11

An application for an interim payment is an application for the court to order some payment before the court has given a final determination on the claim. Interim payments are always discretionary, and the court cannot award an interim payment if doing so would cause an injustice.

Question 12

4

Grounds for Order
The grounds for an order of interim payment are:

Answer 12

*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 satisfied that if the action went to trial, the claimant
would obtain judgment for asubstantial sum against **at least one **and each defendant carries insurance.

Question 12

Must Be Supported by Evidence
application for an interim payment

Answer 12

1. The applicant must support the application by evidence, filed and served with the application.
2. 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 file its written evidence at least** 7 days before the hearing,** and the applicant can file a reply up to 3 days before the hearing.

Question 12

Timing/Invite to Make an Interim Payment

Answer 12

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.

Question 12

4

The written evidence for interim payment must contain the following details:

Answer 12

(1) the sum of money sought;
(2) items and matters in respect of which the payment is sought;
(3) an estimate of the final judgment, attaching **medical reports **in a personal injury case; and
(4) in personal injury claims, a schedule of loss containing details of past and future loss and damage.

Question 12

Timescale for injunction order

Answer 12

In some cases, it is possible to obtain an interim injunction in 48 to 72 hours.

Question 13

5

Application to Court
Injunction order

Answer 13

1. To secure an interim injunction, a party will apply to the court, often without notice to the other party.
2. if the in-junction is granted without notice, the person enjoined must be given notice of the order and cannot be punished for violating the order unless they acted knowing of the order.
3. Once obtained, the injunction remains in force until the** ‘return date’**, which is a hearing listed to take place within days of the original hearing.
4. At the hearing on the return date, the defendant will have the opportunity to explain why the injunction should not have been granted, and the court will decide whether to** continue or dismiss** the injunction order.
5. A defendant who wishes to set aside an injunction must make** an application** and give notice.

Question 13

INJUNCTIONS

Answer 13

1. An injunction is a court order that requires a party to do or stop doing something.
2. Injunctions are interim if made before trial orfinal if made at trial
3. If an injunction is granted, it usually takes effect** immediately**.
4. If the ‘enjoined’ party breaches the order, the court may hold the party in contempt of court
5. . The court has discretion as to whether to grant an injunction. However, a court will not grant an injunction if damages would be an
   adequate remedy.

Question 13

Interim payment Often Combined with Summary Judgment
Application

Answer 13

A claimant often combines an interim payment application
with an application for summary judgment. If the court grants summary judgment, the court will then consider whether it is appropriate to award an interim payment.

Question 14

Two Types of Injunction

Answer 14

*A prohibitory injunction prevents someone from taking
action; and
*A mandatory injunction requires someone to take action.

Question 15

2

Undertaking in Damages
Injunction order

Answer 15

1. A court will sometimes require an applicant to give an undertaking in damages as a condition on granting an interim injunction.
2. This is an undertaking that the claimant will compensate the defendant for any loss suffered because of the injunction if the court later determines the injunction should not have been granted in the first place.

Question 15

Injunction Before Proceedings Commence

Answer 15

It is possible to obtain an injunction before proceedings
commence but, in this situation, the applicant must undertake to issue proceedings straight away.

Question 15

6

Grounds for Discharge
A defendant seeking the discharge of an injunction must
apply on notice to a judge of the division in which the claim is proceeding. The grounds may be:

Answer 15

1. Material non-disclosure (that is, not all relevant information was provided by the applicant when seeking the injunction);
2. Failure of the applicant to comply with terms on which the injunction was granted;
3. The facts do not justify interim injunction relief;
4. The injunction is oppressive;
5. There has been a material change in the **circumstances **of the parties or in the law since the injunction was granted; and/or
6. The claimant has failed to prosecute the claim with due speed.

Question 15

FREEZING INJUNCTIONS

Answer 15

1. Freezing injunctions are a type of prohibitory injunction designed to freeze the assets of the defendant (that is, prohibit the defendant from disposing of its assets).
2. Freezing injunctions are granted if there is a risk that the defendant may dispose of the subject assets or remove them from the jurisdiction before the claim proceeds to trial.
3. The application will be made without notice to the respondent (the party to be enjoined).
4. An application for a freezing injunction must be to a High Court judge

Question 15

4

Grounds Necessary to Grant
To grant a freezing injunction, the court must be satisfed that:

Answer 15

*There is a justifable cause of action;
*The claimant has a good, arguable case;
*The defendant has assets within the jurisdiction; and
*There is a real risk that the defendant may dispose of or
dissipate those assets before judgment can be enforced.

Question 16

3

components of freezing injunction order

Answer 16

1. Undertakings by the claimant—normally undertaking as to damages, to notify the defendant of the order, to inform third parties, such as banks, of their right to apply for directions or variation, and to indemnify a third party in respect of expenses incurred in complying and compensate for loss suffered as a result of the making of the injunction; and
2. The order freezing the defendant’s assets—the amount frozen should not exceed the maximum amount of the claim.
3. The order must also state the period of time for which the order is to last

Question 17

2

Grounds for Discharge Freezing Injunction

Answer 17

The defendant can apply for discharge of a freezing injunction if they offer **other security **for the claimant’s claim (for example, payment into court) or show that the claimant is guilty of material non-disclosure.

Question 18

3

SEARCH ORDERSAND PRESERVATION OF PROPERTY

Answer 18

1. Search orders and orders to preserve property are specific types of mandatory injunctions.
2. If it is clear the defendant will not obey the rules relating to disclosure and may seek todestroy incriminating documents or property, the other party can ask the court to make a search order requiring the defendant to allow the claimant to search for and potentially seise evidence that the defendant may destroy
3. The court may also order a party to preserve evidence that may be relevant and/or to preserve property that may be the subject matter of proceedings

Question 19

There are three basic requirements that must be satisfed before the court may grant a search order:

Answer 19

1. There must be a strong prima facie case on the merits of the underlying claim;
2. The defendant’s activities (that is, the steps that the defendant is making in an attempt to avoid paying a judg-ment) must cause very serious potential or actual harm to the claimant’s interests; and
3. There must be clear evidence that the property or documents are in the defendant’s possession and there is a real possibility that the material may be** destroyed** before
   an application can be made on notice.

Question 20

3

Search Order
Independent Supervising Solicitor
An independent supervising solicitor oversees execution of
the order and they will undertake:

Answer 20

1. To offer to explain the meaning and effect of the order to the defendant;
2. To inform the defendant of their right to seek legal advice and their right to apply to vary or discharge the order;
   and
3. To prepare a written report on execution of the order and to provide it to the claimant’s solicitors and to the court.

Question 20

3

Search Order
Claimant’s Solicitor’s Undertakings
The claimant’s solicitor will undertake:

Answer 20

1. To return the original documents to the defendant within two days;
2. To deliver any property in dispute to the defendant’s solicitors, for them to retain securely; and
3. To retain securely all other property until the court directs otherwise.