Interim Applications

Question 1

What is an Interim Application (“IA”)?

Answer 1

An Application made between the start of proceedings and trial.

Question 2

When should an Interim Application be made?

Answer 2

As soon as it becomes necessary and apparent to make.

Parties must bunch their IAs around Hearings whenever possible, to further the Overriding Objective.

Question 3

How is an Interim Application made?

Answer 3

By filing an Application Notice (Form N244) and a Draft Order, outlining:

• Who is making the Application;
• What Order the Applicant seeks;
• Why the Applicant is seeking that Order; and
• What supporting evidence the Applicant relies upon.

The process differs for Summary Judgments and Interim Payments.

The Court will then Issue the Application and Notify the Parties as to when it will be Heard, which will usually be over telephone if it is expected to be resolved within the hour.

Question 4

How can Evidence in support of an Interim Application be given?

Answer 4

• A Witness Statement or Affidavit.
• By reference to existing Statements of Case.
• In the Application Notice itself, in which case, it must also be accompanied by a Statement of Truth.

Question 5

What is an Affidavit?

Answer 5

• A formal written statement of facts;
• Sworn or affirmed to be true by by the Deponent; and
• Witnessed by an individual authorised to administer oaths.

Witness Statements are not Sworn, only supported by a Statement of Truth.

Question 6

When must the Issued Application be Served?

Answer 6

As soon as practicable after filing and not less than 3 Clear Days before the Hearing.

CPR 23.7.

The deadline for Summary Judgments is 14 days before the Hearing.

If the Respondent wishes to File and Serve any Evidence of its own, it must do so as soon as possible.

A Statement of Costs concerning the Application should also be Filed and Served not less than 24 hours before the Hearing.

Question 7

Can an Interim Application be handled without a Hearing?

Answer 7

Yes, namely if:

• The Parties agree there need be no Hearing;
• The Court believes a Hearing to be in appropriate;
• The Parties have agreed terms for the Order, in which case, they should submit a mutually-signed Consent Order.

Once the Court has considered the Application and made its decision, it will draft, Seal, and Serve the Order.

Question 8

When is it Permissible to make an Interim Application without Notice?

Answer 8

• The Court permits.
• All Parties consent.
• It furthers the Overriding Objective.
• A Court Order, Rule, or Practice Direction permits.
• There is exceptional urgency, usually concering a remedy.
• A Hearing is approaching and a does not have enough time to Serve Notice of an IA.
  • The Applicant should still inform the Court and Respondent of the IA’s nature and motivation, preferrably in writing, as soon as possible.

The last one is dubious.

Question 9

What are the Procedural Safeguards for No-Notice Interim Applications?

Answer 9

The Applicant must:

• Explain why Notice was not given;
• Present to the Court arguments and evidence in support of the Respondent’s position.
• Serve the Respondent as soon as possible after the Hearing:
  • The Application Notice;
  • The Supporting Evidence; and
  • The Court Order.

The Court Order must outline the Respondent’s right to apply to have it Set Aside or Varied within 7 days of Service.

Question 10

What are the Grounds for Summary Judgment?

Answer 10

• The Claimant or Defendant have no real prospect of successfully proving or defending the Claim or Issue, respectively; and
• There are no compelling reason why the Claim or Issue should be disposed of at Trial.

CPR 24.2.

In other words, their position is false, fanciful, or imaginary.

Supporting Evidence must thoroughly address these grounds and any relevant points of law, and must contain a Statement of Truth, attesting the Applicant’s honest belief in the weakness of the Respondent’s case.

Question 11

What are some Compelling Reasons that would defeat an Application for Summary Judgment?

Answer 11

• Expert evidence is required.
• The case is a multi-party litigation.
• Key documents must be scrutinised.
• The Defendant has a Right to Trial by Jury.
• The Defendant needs more time to investigate.

Question 12

Who can Apply for Summary Judgment, and When?

Answer 12

• The Claimant: After the Defendant has Filed an Acknowledgement of Service or Defence, or earlier with the Court’s permission.
• The Defendant: At any time after Proceedings start.
• The Court: At any time of its own initiative.

Ideally, an Application should be made either before or with the Filing of the Directions Questionnaires to avoid incurring unnecessary costs.

If the Claimant fails to comply with PAPs, the Application will usually be stalled until the Defence is filed or the time for doing expires.

Question 13

What is the Real-Time Effect of an Application for Summary Judgment?

Answer 13

To create a pause in the Proceedings while the Application is being decided, such that:

• If the Claimant applies before the Defence is Served, the deadline for doing so is extended until after the Hearing.
• If the Defendant applies, they need not File either an Acknowledgement of Service or a Defence until after the Hearing.

CPR 24.4(2).

Question 14

What additional element must an Application Notice for Summary Judgment include?

Answer 14

A reminder of the Respondent’s obligation to File and Serve any evidence at least 7 days before the Hearing.

Question 15

What are the possible outcomes of Application for Summary Judgment?

Answer 15

• Dismissal of the Claim.
• Judgment on the Claim.
• Dismissal of the Application.
• A Conditional Order permitting the Respondent’s case to persist, subject to conditions, due its improbability of success.

Question 16

What is an Interim Payment?

Answer 16

A payment on account of damages, debt, or other sum the Defendant may be held liable to pay to a Claimant.

An Application for Interim Payment is naturally made by the Claimant.

Question 17

When will the Court grant an Application for Interim Payment?

Answer 17

After the deadline for Filing an Acknowledgement of Service and if any of the following apply:

• The Defendant admitted liability to pay damages, or another sum, to the Claimant;
• The Claimant obtained judgment against the Defendant for damages, or another sum, to be assessed.
• The Court believes the result of Trial would be the Claimant obtaining judgment for a substantial sum against the Defendant.

The Claimant should first make a request for Voluntary Payment from the Defendant, and if refused, only then make an Application.

Question 18

What Evidence must be given in an Application for Interim Payment?

Answer 18

• The estimated sum of the Final Jugment;
• The sum sought by way of Interim Payment;
• The Heads of Loss for which Interim Payment is sought;
• Why the Applicant believes the Application grounds are satisfied;
• Any other relevant issues.

Additionally, in cases of Personal Injury, details of special damages, past and future losses, and if applicable, the person on whose behalf the Claim is made and the Claim’s nature.

Question 19

How large of an Interim Payment can the Court Award?

Answer 19

No more than what is reasonably proportinate to the likely size of the Final Judgment, including such things as set-off or contributory negligence.

CPR 25.7.

Question 20

What is the Main Restriction of Interim Applications?

Answer 20

They cannot be disclosed to the Trial Judge until liability and quantum are decided, unless the Defendant agrees.

Question 21

What is a Security for Costs Application (“SOCA”)?

Answer 21

• An Application made by the Defendant; that is
• Concerned the Claimant will be unable or unwilling to pay its costs should it succeed; and consequently
• Seeks Security from the Claimant.

SOCAs can also be made by Claimants or Third Parties in respect of a Counterclaim or Additional Claim by the Defendant.

Usually, Security comes in the form of a payment to the Court by the Claimant, but a payment to the Defendant’s Solicitor, a Bank Guarantee, or an Undertaking to Pay are also viable.

Question 22

What are the Grounds for a Security of Costs Application?

Answer 22

• It is just to make an Order, having regard to all circumstances; and
• One or more of the Prescribed Conditions are met:
  • The Claimant resides outside the jurisdiction.
  • The Claimant failed to give an address in the Claim Form.
  • The Claimant is a company and there is reason to believe it will be unable to pay costs.
  • The Claimant is a Nominal Claimant and there is reason to believe it will be unable to pay costs.
  • The Claimant has taken actions with its assets that would make enforcing a Costs Order more difficult.
  • The Claimant has changed addresses since Proceedings commenced with a view to evading consequences.

CPR 25.13(1)-(2).

A Nominal Claimant is a Party bringing legal action in name only, acting on another’s behalf and not possessing a significant stake in the Claim’s outcome.

Question 23

What Factors will the Court consider when deciding whether to Grant a Security for Costs Application?

Answer 23

• Whether the Application is bona fide and not a sham, including whether:
  • The Respondant has reasonable prospects of success in the Main Claim;
  • The Applicant has admitted somewhere that money is due; and
  • A susbstantial payment into Court or open offer of a substantial payment has been made.
• Whether the Application is being used oppressively to stifle the Main Claim.
• Whether the Applicant’s want of means is due to any conduct by the Respondant.
• Whether the Application is made at a later stage in the Proceedings.

Question 24

What does it mean to ‘Reside Outside the Jurisdiction’?

Answer 24

Residence:

• For an individual, this is where they live.
• For a company, this is where central management and control is exercised.

Jurisdiction:

• Anywhere other than England & Wales that is not bound by the 2005 Hague Convention.

Question 25

If the Applicant reasonably believes the Respondent is unable to Pay Costs, what must they show?

Answer 25

Evidence demonstrating the Respondent’s will be unable to pay and the amount of likely costs.

Reasonable Belief, not the Balance of Probabilities, is the standard.

Question 26

How large of a Security can the Court Award?

Answer 26

The amount the Court believes fair, paying mind to:

• The Defendant’s likely costs;
• The necessary scope of Security;
• The necessary duration of Security;
• The degree to which it will prejudice the Claimant;
• Any other relevant issues.

Question 27

What is an Interim Injuction?

Answer 27

• Any Injunction granted before Judgment, lasting until the Trial’s conclusion;
• To restrain the Respondent from causing damage to the Applicant through an action or omission.

Question 28

What are the Three Types of Interim Injunction?

Answer 28

• Prohibitory Injunction: Requires the Respondent to refrain from performing an act.
• Mandatory Injunction: Requires the Respondent to perform an act.
• Quia Timet Injuction: Requires the Respondent to refrain from committing a particular wrongdoing, whether by action or omission.

Question 29

When will the Court grant an Interim Injunction?

Answer 29

When it is just and convenient. In determing that, the Court will ask:

1. Whether there is a serious Issue to Tried;
2. Whether Damages would be an adequate Remedy for a Party injured by the Court’s grant or denial of an Injunction; and
3. Which Party is likely to be most inconvenienced by an Injunction.

Senior Courts Act 1981 — s. 37.

An Injunction is a Remedy. Therefore, there must be a Cause of Action for it to attach to, hence, the first question.

When considering the second question, the Court will first consider the Applicant’s perspective, and if appropriate, then the Respondent’s.

Question 30

Which Equitable Principles are most relevant to whether an Interim Injunction will be granted?

Answer 30

• The Applicant must not delay.
• The Applicant must come with clean hands.
• The Injunction must serve a practical purpose.

Question 31

What are the further Procedural Safeguards for Applications of Interim Injunctions?

Answer 31

• Pre-Claim Applications: Only if the matter is urgent or otherwise in the interests of justice.
• Without Notice Safeguards:
  • The Applicant must make full and frank disclosure of all relevant factual and legal matters, and its Solicitors must prepare and Serve a full note of Hearing on the Respondent without delay.
  • No-Notice Injunctions are only granted for a limited time and will be revised at a later Hearing, with the Respondent present.
  • At the Hearing, the Injunction will be maintained or discharged and Undertakings may be enforced or accepted.
• Undertaking in Damages:
  • The Applicant undertakes to compensate the Respondent for any consequent losses;
  • If the Court later decides the Injunction should not have been gratned.

Undertakings are at the Court’s discretion.