Interim applications

Question 1

What are interim applications, and why are they important in litigation?

Answer 1

Interim applications are applications made by a party to the court after litigation has begun but before the trial. They are essential because they address specific procedural or substantive issues that arise during the litigation process, ensuring that the case proceeds efficiently and in accordance with the court’s overriding objective. These applications help resolve matters that can prevent delays and keep the litigation on track, such as procedural compliance, requests for more time, and issues related to trial preparation.

Question 2

What does Part 23 of the CPR regulate, and what should parties attempt before making an application?

Answer 2

Part 23 of the Civil Procedure Rules (CPR) governs the general rules surrounding applications to the court. However, specific types of applications may have additional or express provisions. Before making an application under Part 23, parties should first try to resolve matters between themselves through negotiation or correspondence (e.g., by letter or email) to comply with the overriding objective and avoid unnecessary costs or penalties. Only if such attempts fail should an application be made to the court.

Question 3

What is an application notice, and what specific form must be used when filing one?

Answer 3

An application notice is a formal document that states the order the applicant is seeking from the court and explains why the order is necessary. The party making the application (the applicant) must use Form N244 when submitting an application notice. Although there is no strict requirement to provide evidence, it is often necessary to include the facts that support the application. The application must clearly outline the reason for the order to be granted.

Question 4

What type of evidence is typically provided in support of an interim application, and what is the role of a witness statement?

Answer 4

Evidence supporting an interim application is generally provided in a witness statement. The statement should be made by the person best able to provide relevant factual details, based on personal knowledge.

If the application is technical (e.g., for amending a statement of case), a solicitor might be the appropriate person to provide the evidence. The witness statement should include factual information, anticipate the opponent’s case where appropriate, and attach relevant supporting documents as exhibits. This is crucial because the judge will rely primarily on written evidence, as there will be no oral testimony at the hearing.

Question 5

What is a draft order, and when must one be included with an interim application?

Answer 5

A draft order is a written document that outlines the order the applicant seeks the court to make. According to Practice Direction 23A, except in very simple cases, the applicant should attach a draft of the proposed order to the application notice. The draft order helps guide the judge in making a decision and can streamline the process, especially in more complex cases where the order may involve multiple legal or procedural issues.

Question 6

What is the procedure for serving an application notice, and what does “clear days” mean in this context?

Answer 6

The application notice must be served on the respondent (the party against whom the order is sought) at least three clear days before the court hearing. “Clear days” means that the date of service, the date of the hearing, weekends, and bank holidays are excluded from this count.

This allows the respondent sufficient time to prepare and respond to the application, ensuring fairness in the process.

Question 7

What are consent orders, and how do they differ from regular interim applications?

Answer 7

A consent order is an order that both parties agree to and request the court to make without the need for a court hearing. When parties reach an agreement on the terms of the order they require, they can apply for a consent order, typically by submitting a letter to the court.

The court will then review the material to ensure that it is appropriate to make the order. The primary benefit of a consent order is that it saves time and reduces costs, as there is no need for a formal hearing.

Question 8

When can an interim application be made without notice to the other party, and what responsibilities does the applicant have in such cases?

Answer 8

An interim application can be made without notice to the other party in situations of exceptional urgency or where giving notice would defeat the purpose of the application. For example, applications for freezing orders (to freeze financial assets) or search orders are often made without notice, as informing the opponent might give them time to hide or destroy assets. In such cases, the applicant must explain why notice was not given and has a duty of full and frank disclosure.

This means that the applicant must provide all relevant evidence, including any facts that the respondent would likely present if they had been notified of the application. If the court grants the order, the applicant must serve the order, the application notice, and supporting evidence on the respondent as soon as practicable. The respondent can then apply to set aside or vary the order within seven days of service.

Question 9

Where should an interim application be filed if the claim has been transferred to another court?

Answer 9

If a claim has been transferred to another court, the interim application must be made to the court where the claim has been transferred. Otherwise, the application should be made to the court where the claim initially started.

Question 10

Why is it important for the witness statement to include sufficient detail, and what role do exhibits play?

Answer 10

It is important for the witness statement to include sufficient detail because the judge will make the decision on the application based mainly on the written submissions, as there will be no oral evidence from witnesses at the hearing. Exhibits, which are attached documents relevant to the case, play a vital role in supporting the factual claims made in the witness statement, providing necessary context and evidence for the court’s consideration.

Question 11

What is meant by the “duty of full and frank disclosure” in the context of applications made without notice?

Answer 11

he duty of full and frank disclosure requires that an applicant making an application without notice to the other party must present all relevant evidence, including any facts or arguments that they reasonably anticipate the respondent (the party not notified) would make if they were present. This duty ensures that the applicant cannot take advantage of the respondent’s absence and helps maintain fairness in the court’s decision-making process.

Question 12

What happens if the court makes an order on an application made without notice to the respondent?

Answer 12

If the court grants an order on an application made without notice, the applicant must serve the following documents on the respondent as soon as practicable: (a) the court order, (b) the application notice, and (c) any supporting evidence. The respondent then has the right to apply to set aside or vary the order within seven days of being served with the order.

Question 13

How can parties avoid the need for a court hearing in relation to an interim application?

Answer 13

Parties can avoid the need for a court hearing by agreeing on the terms of the order they seek and applying for a consent order. A consent order is made when both parties reach an agreement and request the court to formalize it without requiring a hearing. Typically, a letter explaining the agreed terms is submitted to the court, which can save time and reduce costs for both parties.

Question 14

What are the main purposes of interim applications and provide examples for each?

Answer 14

The main purposes of interim applications and their corresponding examples are as follows:

1. To ensure compliance with procedural matters:

• Permission to serve a claim form out of the jurisdiction.
• Challenging the court’s jurisdiction.
• Permission to amend a statement of case or make an additional claim.

2. To request more time:

• To serve a claim form or a defence.
• To serve the list of documents

3. To assist in preparation for trial:
   - Requiring a reply to a Part 18
   request for further information.

• Seeking disclosure of documents.

4. To consider penalties:
   * Applying for a sanction against the opponent for failing to meet a deadline.

• Applying for relief from a sanction imposed by the court, such as the imposition of a penalty costs order or the striking out of a claim.

Question 15

What are the key components and steps involved in making an interim application?

Answer 15

The process of making an interim application involves the following key components and steps:

1. Form N244: The application notice form used to make the interim application.
2. Witness Statement: A document stating why the order is sought and including evidence of the facts relied upon in support of the application.
3. Draft Order: A draft of the order being requested to assist the judge in deciding the application.
4. Service: The application notice must be served on the respondent.

• For applications made on notice: The notice must be served at least three clear days before the hearing.
• For applications made without notice: The application must be served as soon as practicable after the order is issued.

The respondent may apply to set aside or vary the order within seven days of it being served.

Question 16

What are the different types of interim costs orders and when do they apply?

Answer 16

There are three main types of interim costs orders:

1. [Named party’s] costs:

• Effect: The party named in the order is entitled to their costs for the interim application, regardless of other costs orders made in the proceedings. These costs are normally assessed and must be paid within 14 days.
• When it applies: When there is a clear “winner,” such as when the claimant succeeds in an application for summary judgment. The unsuccessful party would be ordered to pay the costs (e.g., “claimant’s costs” means the defendant pays the claimant’s costs).

2. Costs in the case:
   * Effect: At this stage, no party is named, and neither party can recover costs. It is only decided who pays the costs at the end of the proceedings, with the ultimate loser of the litigation liable for these costs.

• When it applies: This may apply when the court makes a conditional order. For example, the defendant can defend the proceedings only if they file a full defense within 14 days, and if they fail, the claimant recovers the costs of the interim application.

3. No order as to costs:
   * Effect: Each party bears their own costs of the interim application, independent of any final costs orders.
   * When it applies: This is often made when neither party is at fault or when the outcome of the application is neutral (e.g., when additional evidence is needed, requiring more witness statements).

Question 17

How does the court typically decide on costs after an interim application, and what does ‘pay as you go’ litigation mean?

Answer 17

After an interim application, the court decides who will bear the costs, following the general rule where the loser pays the winner’s costs. This is often referred to as ‘pay as you go’ litigation, meaning that costs are decided and paid at various stages during the proceedings rather than waiting until the final judgment. For example:

• If the application is successful, the respondent is usually ordered to pay the applicant’s costs.
• The nature of the application and the parties’ conduct may affect this order. For instance, if a party applies to amend their statement of case, they may still be ordered to pay costs even if the application is successful, because the court may view the need for amendment as something that should have been avoided with better preparation earlier in the case.

Question 18

What specific expenses are involved in making an interim application?

Answer 18

Making an interim application involves several specific expenses, including:

• Collecting evidence: This involves gathering relevant documents, witness statements, or other evidence needed to support the application.
• Preparing the notice of application: This includes drafting and filing the formal application notice (typically Form N244), which outlines the relief sought.
• Drafting a supporting witness statement: This provides evidence and reasoning for why the court should grant the application.
• Attending the hearing: Costs incurred from legal representation or time spent by the parties themselves attending the court hearing.
• Paying the court fee: A mandatory fee that must be paid upon submitting the application.

Question 19

What is summary judgment, and what circumstances allow for such a judgment under CPR Part 24?

Answer 19

Summary judgment is a procedure under CPR Part 24 that allows the court to resolve a case without a full trial if there is no real prospect of success for either the claim or defense. A court may grant summary judgment if:

• The claimant has no real prospect of succeeding on the claim.
• The defendant has no real prospect of successfully defending the claim.
• There is no other compelling reason why the case should proceed to trial. Summary judgment is designed to prevent unnecessary delays and expenses in cases where the outcome is already apparent.

Question 20

When is summary judgment unsuitable, and why might a case require a full trial instead?

Answer 20

Summary judgment is unsuitable when the case involves:

• Complex factual issues that require detailed examination or investigation, which can only be properly resolved through a full trial.
• Difficult legal questions that require thorough legal analysis and cannot be decided without extensive argument and evidence.
• Cases where disputed oral evidence is central to resolving the matter, such as where the terms of a contract are contested. These scenarios require the full trial process to ensure that all relevant evidence is considered, and justice is served.

Question 21

What does ‘no real prospect’ mean in the context of summary judgment, and how does the court assess this?

Answer 21

No real prospect’ means that the claim or defense lacks any realistic chance of success based on the evidence presented. The court assesses this by examining the facts and evidence provided by both parties to determine whether there is a genuine issue that requires a trial. For example:

• For a claimant: If the defendant has no defense that could reasonably succeed at trial, the claimant can seek summary judgment.
• For a defendant: If the claim lacks sufficient merit or the evidence is too weak to succeed, the defendant can seek summary judgment. Courts often use this procedure to ‘weed out’ hopeless cases, especially where litigants in person (self-represented individuals) might pursue claims or defenses without fully understanding their legal merits.

Question 22

What are some compelling reasons that might prevent a case from being resolved by summary judgment?

Answer 22

The court may refuse summary judgment if there are compelling reasons why the case should proceed to trial. Common examples include:

• Time for further investigation: The need to gather more evidence or locate important witnesses, which requires delaying judgment until the facts can be properly investigated.
• Complex or technical nature: If the claim or defense involves highly complicated or technical issues that can only be understood through a full examination of the evidence at trial.
• Disputed oral evidence: Where witness testimony is central to the dispute, such as in cases involving contractual terms, a trial may be necessary to resolve conflicting accounts.

The judge may decide that justice would be better served by allowing these issues to be explored in full at trial rather than resolving the case prematurely.

Question 23

What is the procedure for applying for summary judgment, and when is the court’s permission required?

Answer 23

The procedure for applying for summary judgment is as follows:

• The applicant (either party) files an application using Form N244 and typically includes a supporting witness statement outlining the reasons for the request.
• The respondent must be given at least 14 days’ notice of the hearing date, ensuring they have enough time to prepare their defense.
• The respondent must file and serve any written evidence they intend to rely on at least seven days before the hearing.
• If the applicant wishes to introduce new evidence in response, they must file and serve it at least three days before the hearing.
• The court’s permission is only required if the claimant seeks summary judgment before the defendant has filed an acknowledgment of service or defense. However, most claimants wait until after a defense is filed.

Question 24

What possible outcomes can the judge order following a summary judgment hearing?

Answer 24

The judge has several options following a summary judgment hearing:

• Judgment on the claim: If the claimant wins the application, the court issues a judgment in their favor, and the case proceeds to enforcement.
• Striking out or dismissal of the claim: If the defendant wins, the claimant’s claim is dismissed, bringing the case to an end.
• Dismissal of the application: If the applicant fails to prove their case, the matter will proceed to trial, and no summary judgment is granted.
• Conditional order: The court may issue a conditional order if neither party fully wins the application. This allows the litigation to continue, provided certain conditions are met (such as the payment of money into court or taking another specified step). Conditional orders are used when there is some possibility, but not certainty, of success.

Question 25

What are conditional orders, and how do they function in summary judgment proceedings?

Answer 25

A conditional order is a type of judgment made when the court believes that either the claim or defense might succeed, but it’s not sufficiently clear to grant or dismiss summary judgment outright. The court imposes specific conditions that must be fulfilled for the case to continue, such as:

• The defendant may be required to pay a sum of money into court as security to ensure they are genuinely committed to defending the case.
• The claimant may need to take certain actions, such as providing further documentation or clarifying certain points of their claim. Conditional orders are designed to prevent frivolous litigation while still allowing the parties to continue if they are serious about pursuing or defending the claim.

Question 26

How are costs awarded in summary judgment applications, and how do they vary depending on the outcome?

Answer 26

The costs awarded in summary judgment applications depend on the outcome:

• If the claimant wins and the summary judgment is for a specified sum, the court may award fixed costs under Part 45 of the CPR. If the claimant’s costs exceed the fixed amount, they can request a summary assessment to recover additional costs.
• If the claimant wins an unspecified claim, the usual rule applies, where the winner (the claimant) is awarded costs, which are summarily assessed, and a disposal hearing may follow to assess damages.
• If the defendant wins and the claim is struck out, the court will order the claimant to pay the defendant’s costs for the entire claim.
• If the application is dismissed, the unsuccessful party must pay the other party’s costs related to the summary judgment hearing.
• If a conditional order is made, costs are typically awarded in the case, meaning that costs will be determined at the conclusion of the proceedings rather than immediately.

Question 27

What are the grounds, procedure, and possible orders for a summary judgment under CPR Part 24?

Answer 27

Grounds for Summary Judgment:

1. Claimant has no real prospect of succeeding on the claim (based on points of law or evidence).
2. Defendant has no real prospect of successfully defending the claim.
3. No other compelling reason why the case should proceed to trial, such as:
   * Need for further investigation.

• Complex or technical evidence required.
• Disputed issue requires oral evidence.

Procedure for Summary Judgment:

• Applicant files Form N244 with a witness statement, served at least 14 days before the hearing.
• Respondent files and serves their evidence at least 7 days before the hearing.
• Applicant may file further evidence at least 3 days before the hearing.

Possible Orders:

• Claimant’s application granted: Defendant pays costs; judgment entered, subject to enforcement.
• Defendant’s application granted: Claimant pays costs; claim dismissed, proceedings end.
• Application dismissed: Loser pays winner’s costs, proceedings continue.
• Conditional order: Costs in the case; case proceeds if the condition is satisfied.

Question 28

Under what rule does the court have the power to grant interim injunctions, and who can apply for them?

Answer 28

The court has the power to grant interim injunctions under Part 25 of the Civil Procedure Rules (CPR). Either party involved in the litigation can apply for an interim injunction to protect their rights or support their cause of action during the proceedings.

The injunction aims to prevent harm or maintain the status quo until the matter is resolved at trial or through further court orders.

Question 29

When can a party apply for an interim injunction, and what conditions must be satisfied for the court to grant one?

Answer 29

A party can apply for an interim injunction at any time after proceedings have commenced and, in exceptional cases, even before. The purpose of an interim injunction is to preserve the status quo (the current state of affairs) until the trial.

It can prevent the defendant from taking certain actions (e.g., soliciting customers) or compel them to act (e.g., stopping a nuisance). Injunctions remain in force until the trial or further court order

Question 30

What is an injunction, and how does it differ from other court orders?

Answer 30

An injunction is a discretionary remedy granted by the court, distinguished by the fact that its breach is punishable as contempt of court. Unlike other orders, injunctions are granted only when damages are not an adequate remedy for the applicant. Their primary function is to prevent further harm by maintaining the status quo until a trial is held.

Question 31

What are the guidelines set out by the court when deciding whether to grant an interim injunction?

Answer 31

When deciding whether to grant an interim injunction, the court follows the guidelines set out in the case of American Cyanamid Co (No 1) v Ethicon Ltd [1975]. The court considers whether:

• (a) There is a serious question to be tried.
• (b) Damages would be an adequate remedy for either party.
• (c) The balance of convenience favors granting or refusing the injunction.
• (d) There are any special factors to consider. These guidelines help the court make a fair decision when the facts of the case are not yet fully clear.

Question 32

What is a cross-undertaking in damages, and why is it important in the context of interim injunctions?

Answer 32

A cross-undertaking in damages is a promise made by the applicant to the court that they will compensate the respondent (or any other affected party) for any loss caused by the injunction, should it later transpire that the injunction was wrongly granted.

This is important because it protects the respondent from undue harm. For example, if the injunction prevents the respondent from conducting business, and it is later proven that they were not infringing any rights, the respondent can claim damages for their lost profits during the injunction period.

Question 33

What is the difference between orders obtained with notice and without notice in the context of interim injunctions?

Answer 33

• With notice: The respondent is given prior warning of the hearing, and the interim injunction lasts until the trial or until set aside by the court.
• Without notice: The court may grant an interim injunction without notice if there are good reasons, such as urgency or the risk that the respondent might destroy evidence. If granted without notice, the injunction typically remains in effect until a further hearing where all parties are present, or the respondent applies to have it set aside. Without notice applications are common when secrecy is necessary to prevent harm.

Question 34

What are freezing injunctions, and under what conditions can they be granted?

Answer 34

A freezing injunction restrains a party from removing assets from the jurisdiction (England and Wales) or disposing of them in a way that would prevent enforcement of a judgment. These injunctions are typically granted without notice to prevent the respondent from transferring or hiding assets before the hearing. The court must be satisfied that the applicant has a good arguable claim and that there is a real risk the respondent will dispose of their assets to avoid judgment.

Question 35

What is a search order, and why is it granted without notice in most cases?

Answer 35

A search order compels the respondent to allow the applicant to search their premises for documents or property that belongs to the applicant. This order is typically made without notice because notifying the respondent in advance would likely lead to them hiding or destroying the items in question. For the court to grant a search order, it must be satisfied that:

• The applicant has a strong case.
• The applicant will suffer serious harm if the order is not made.
• The respondent has incriminating materials that cannot be obtained through other means.
  Search orders are drastic in nature and can have significant consequences for the respondent, so the evidence supporting such an application must be compelling. These applications are usually made to a High Court judge, and the supporting evidence must be in the form of a sworn affidavit.

Question 36

What is an interim payment, and when can a party apply for one?

Answer 36

An interim payment is an advance payment made to the claimant while the litigation is ongoing. This payment helps the claimant avoid financial hardship during the period between the commencement of the claim and the final judgment. A party may apply for an interim payment after the time for acknowledging service has expired. The court will grant an interim payment if one of the following conditions is met:

• The defendant has admitted liability.
• The claimant has obtained judgment against the defendant, but damages are still being assessed.
• The court is satisfied that, if the case went to trial, the claimant would likely win a substantial judgment.
  The interim payment process is meant to alleviate the claimant’s financial burden while awaiting the final determination of the case.

Question 37

What procedure must be followed when applying for an interim payment, and what evidence is required?

Answer 37

The procedure for applying for an interim payment involves filing an application notice at least 14 days before the hearing. The applicant must provide evidence, typically in the form of a witness statement, that sets out:

• The amount requested.
• The intended use of the payment.
• The likely amount of the final judgment.
• Reasons why the grounds for an interim payment are satisfied.
  Any supporting documents must be attached as exhibits to the witness statement. If the respondent wants to contest the application, they must file evidence at least 7 days before the hearing. The applicant can submit additional evidence in response, provided it is filed at least 3 days before the hearing.