Interim Applications

Question 1

When should an interim application be made

Answer 1

In accordance with the overriding objective, parties should take a reasonable approach to trying to agree matters to avoid the need for an application to court, or to make such an application less contentious.
However, as soon as it becomes apparent that it is necessary or desirable to make an application, the party should apply (23A PD 2.5).

Question 2

Are parties under a specific obligation to ‘bunch’ their interim applictaions

Answer 2

Yes - If a hearing has been fixed for whatever reason, it is up to the parties to issue any necessary applications to ensure that outstanding matters get dealt with at a single hearing wherever possible

Question 3

What is the standard application procedure for interim applictaions

Answer 3

Issue:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Fee
Service (as soon as practicable but not less than 3 clear days before the hearing):
- Application notice (form N244)
- Supporting evidence
- Draft order
- Notice of hearing date
Further evidence:
- Respondent files at court and serves on the applicant evidence as soon as possible
- Applicant files at court and serves on the respondent evidence in reply as soon as possible
Both parties file and exchange statements of costs not less than 24 hours before hearing.
Hearing

Question 4

When are without notice applications permitted

Answer 4

there is exceptional urgency (for example, a remedy is needed immediately);

the overriding objective is best furthered by doing so;

all parties consent;

the court gives permission;

a court order, rule or practice direction permits; or

a date for a hearing has been fixed, a party wishes to make an application at that hearing, and the party does not have sufficient time to serve an application notice. In this case, the party should still inform the other party and the court (if possible in writing) as soon as he can of the nature of the application and the reason for it.

Question 5

What procedural safegaurds are there for without notice hearings

Answer 5

-The application must explain why no notice is given;
- The applicant must draw to the court’s attention arguments and evidence in support of the (absent) respondent’s position.
- The applicant must serve the respondent as soon as possible after the hearing, whether or not the court has granted the relief sought. The documents the applicant must serve on the respondent are:
a. The application notice
b. The evidence in support
c. The order (CPR 23.9).
The court order must contain a statement of the respondent’s right to make an application to set aside or vary the order. Any application to set aside must by made within 7 days of the order being served on the other party (CPR 23.10).

Question 6

What is the purpose of a summary judgement

Answer 6

to enable the court to dispose of claims or issues without the need for a full trial– furthers overriding objective

Question 7

Who can apply for a summary judgement

Answer 7

Either party can apply for summary judgment if it considers that the other party’s position in relation to the claim or particular issues is sufficiently weak.
Or the court
When:
Claimant- After the defendant has filed an acknowledgement of service or defence (or earlier with the court’s permission)(CPR 24.4)
Defendant - Can apply anytime after proceedings have commenced.

Question 8

What is the test for a summary judgement

Answer 8

1.no real prospect of successfully defending/succeeding on the claim or issue
2. There is no other compelling reason why the case or issue should be disposed of at trial.

Question 9

What are the potential compelling reasons why a case should be disposed of at trail in relation to summary judgments

Answer 9

Defendant needs more time to investigate
Expert evidence is required
Multi-party litigation
Scrutiny of key documents is required
Defendant has a right to trial by jury eg fraud

Question 10

What are the consquences for failing to comply with pre action protcol in rleation to summary judgments

Answer 10

If the claimant fails to comply with a relevant pre-action protocol, the application for summary judgment by the claimant will not normally be considered before the defence has been filed or time for doing so has expired (24 PD 2(6)).

Question 11

What is the special procedure used for both summary judgment and interim payments

Answer 11

Issue- service (at least 14 days before hearing) – further evidence (respondent files at least 7 days before hearing)(applicant files on the respondent evidence at least 3 days before hearing) (both parties file and exchange costs not less than 24 hours before hearing) - hearing

Question 12

How do the standard and special procedure differ in relation to interim applications

Answer 12

Service is atleast 14 days before the hearing for special procedure rather than 3. Further eveidnce is as soon as possible for standard but is atleast 7 days before the hearing for respondnet and then 3 days for applicant

Question 13

What is an interim payment

Answer 13

payment on account of damages, debt or other sum (except costs) which a defendant may be held liable to pay to a claimant (CPR 25.1 (1)(k))

Question 14

Who can apply for an interim payment

Answer 14

Only the claiment

Question 15

The court will only make an order for an interim payment where any of the following conditions are satisfied - what are the conditions

Answer 15

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.
It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim.

Question 16

How much can an interim payment be

Answer 16

Any interim payment order must be of no more than a reasonable proportion of a likely final judgment.

Question 17

When can a claiment make an applictaion for interim paymnet

Answer 17

Although the claimant can make a request to the defendant for a voluntary interim payment at any stage in the proceedings (including pre-action), the claimant cannot apply to the court for an interim payment before the end of the period for the defendant filing an acknowledgment of service (CPR 25.6(1)).

Question 18

What procedure is used for interim payments

Answer 18

Special procedure (14/7/3)

Question 19

What is an interim injunction

Answer 19

An interim injunction is a temporary measure taken at an early stage in the proceedings (including pre-action) before trial and before any final decision on the merits of either party’s case to restrain the respondent from causing irreparable or immeasurable damage to the applicant by continuing conduct or ceasing conduct that has led to the dispute. It is usually made in circumstances of urgency and lasts until trial or further order.
(An injunction is an order of the court requiring a party to do or to refrain from doing a given act)

Question 20

Who can apply for an interim injunction

Answer 20

Either party

Question 21

When may an injunction be granted

Answer 21

An injunction may be granted where it is just and convenient

Question 22

What are the american cyanamid guidelines on how the court should exercise its discretion to grant an interim injucntion

Answer 22

Step 1: is there a serious question to be tried?
(An injunction is not a cause of action - it is a remedy. Therefore, an applicant cannot sue
for an injunction.
The applicant must have a pre-existing cause of action.)

Step 2: would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?
Step 2(a) - applicant’s perspective - the court will generally refuse an injunction if the applicant could be adequately compensated by damages for any loss caused by the refusal to grant an interim injunction. However, damages may be inadequate if the respondent has not means of paying them or the harm being caused is irreparable, cannot be quantified, or is serious and likely to continue.

Step 2(b) - respondent’s perspective - if an injunction is granted, the respondent is going to be prevented from doing something, or required to do something, until trial - but it might transpire that the injunction should never have been granted, most likely if the applicant fails at trial. The court will ask itself whether the respondent could be adequately compensated by the applicant if it transpires that the injunction was wrongly granted. If so, then this suggests the injunction should be granted.

Step 3: the balance of convenience
if it appears that damages would be adequate for neither party, then the court will consider a very broad range of factors to try to ascertain whether granting or not granting the injunction carries the lesser risk of injustice ie to ascertain where the ‘balance of convenience’ lies

Question 23

An interim injunction is an equitable remedy so equitable principles apply - what are these?

Answer 23

An injunction will not be obtained when it would serve no practical purpose;

The court might refuse to grant an injunction if the applicant has not come to court with ‘clean hands

Excessive delay may lead to a refusal of the application.

An injunction is also a discretionary remedy: there is no automatic right to an injunction just because all the ‘guidelines’ that follow in this element have been met.

Question 24

What is a cross - undertaken in relation to interim injunctions

Answer 24

A court will often decide to grant an interim injunction only if the applicant offers an cross-undertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction (cross – undertaking made to the court)

Question 25

When will the court grant an interim appliction even before the claim form has been served

Answer 25

The court will only grant an interim remedy before a claim has been issued if the matter is (CPR 25.2(2)(b)):
Urgent; or It is otherwise desirable to do so in the interests of justice.

Question 26

What happens if an interim injunction is granted using the without notice procedure

Answer 26

it will be granted initially for a limited period only and the court will fix a second hearing called the ‘return date

Question 27

What procedure is used for imterim injunctions

Answer 27

Standard Procedure
additional procedural considerations (See above)
Cross undertaking in damages
Without notice safeguards
Applications before a claim is issued

Question 28

What is a security for costs

Answer 28

Security for costs is an application made by a person in the position of defendant (the applicant) who is concerned that the claimant (the respondent) will not be willing / able to pay the defendant’s costs should the claim be successfully defended (CPR 25.12

Question 29

Who can make an interim application for security of costs

Answer 29

By a defendant against a claimant (which is the usual case)
By a claimant against a defendant in respect of a counterclaim
By a third party against a defendant in respect of an additional claim (CPR 20)

Question 30

What are the two matters the defendnat must satisfy the court of before an order for security for costs can be made

Answer 30

Having regard to all the circumstances of the case, it is just to make an order (CPR 25.13(1)(a)

And

One or more of the prescribed conditions in the rules are satisfied (CPR 25.13(1)(b)
The claimant is resident out of the jurisdiction (but is not resident in a State bound by the 2005 Hague Convention)(CPR 25.13(2)(a)) (UK, all EU members states, Mexico, Singapore and Montenegro)

The claimant is a company and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so (CPR 25.13(2)(c)) (the defendant may be able to show that there is ‘reason to believe that the claimant company will be unable to pay even if the claimant company can adduce substantial evidence to the contrary.)

The claimant has taken steps in relation to its assets that would make it difficult to
enforce and order for costs against it (CPR 25.13(2)(g))(assets available to enforce any order for costs have been or are being put beyond the reach of enforcement, for example, the dissipation of assets, the transfer overseas or into the names of third parties or the transfer to places unknown to the defendant)

Question 31

If one of the required conditions for a security of costs is made out, is the court obliged to make an order

Answer 31

No - Even if one of the prescribed conditions is made out, the court is not obliged to give security; security will only be granted by the court if: it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order.

Question 32

What does the court take into considertaion when deciding whether to make an oder for security of costs

Answer 32

The main consideration that the court will take into account is the ability of the respondent to comply with any order for security for costs – if impossible for claimant to fulfil restricts access to justice
other considerations - admission of liability by the defendant or substantial open offers (those the court can be made aware of) will make the defendant’s application less likely to succeed. Delay also makes the application less likely to succeed. If the defendant has itself been responsible for the claimant’s financial difficulties, this will make the application less likely to succeed

Question 33

What procedure is used for security of cost applications

Answer 33

Standard procedure

Question 34

In what manner can security be given udner security of cost orders

Answer 34

A payment into court
A payment to the defendant’s solicitor
A bank guarantee
An undertaking to pay costs