Interim Applications Flashcards
re: general applications
what should parties do before making an application?
- Parties should try to resolve matters themselves before making an IA.
re: general applications
what information must be included in/with the N244?
o Must state what is being sought and why (good practice to refer to CPR)
o Should state the appropriate order as to costs
o Must have a draft order appended (except in simple applications)
o Should have a witness statement appended from a person best able to address the points i.e. if it is a technical application then from the solicitor (not a formal requirement but usually needed to explain facts)
o A copy of the consent order (if applicable)
re: general applications
how may the application be decided?
- The application may be decided without a hearing if the parties agree or the court consider a hearing is not necessary
re: general applications
when can a hearing take place by phone?
o Hearings for less than 1 hour and where one party is legally represented can take place by phone
re: general applications
what should parties do if a hearing is needed?
o If a hearing is needed parties should attempt to agree a time estimate
re: general applications
will there be oral evidence at the hearing?
o Oral evidence at an IA is extremely rare
re: general applications
who hears an interim application?
- Masters and DJs can hear most IAs but some applications are reserved to CJ in the CC or HCJ in the HC i.e. freezing injunctions and search orders
re: general applications
what is the general position as to notice?
The general position is that applications are made on notice
The application and documentation must be served as soon as practicable after it is filed and at least 3 clear days before the hearing
re: general applications
where the application is made on notice, when must it be filed and served?
The application and documentation must be served as soon as practicable after it is filed and at least 3 clear days before the hearing
re: general applications
what are clear days and what is a good way to calculate this?
Clear days = doesn’t include the day on which the period begins (i.e. the hearing) and as it is less than 5 days doesn’t include weekends or bank holidays. Work backwards from day before hearing date to calculate.
re: general applications
when can an application be made without notice?
- An application may be made without notice if:
o There is exceptional urgency;
o It promotes the OR;
o There is consent of the parties;
o There is permission of the court; or
o A court order, rule or PD requires it
re: general applications
what must the applicant do when making the without notice application?
- The applicant must state why notice has not been given and must present any arguments they reasonably think the respondent would put forward
re: general applications
what must an applicant do following the without notice application?
Whatever the outcome of the w/o notice application, the application, supporting documentation and order must be served on the respondent
The order must state that the other party has the right to make an application to set aside or vary the order
The respondent has 7 days to exercise this right
re: general applications
when are costs decided?
- Judge will decide costs at the end of the IA (called PAYG litigation)
re: general applications
what is the general position regarding costs?
- General rule - loser pays the winner’s costs but the court has discretion to make cost orders to reflect the conduct of the parties.
re: general applications
what are the most common costs orders?
[named party’s] costs named party is entitled to payment of costs by o/s
Normally summarily assessed and ordered to be paid within 14 days
Usually made when the applicant is successful with their application
Costs in case neither party pays at this stage. The loser of the overall litigation will be liable to pay.
Might be used if a conditional order was granted
No order as to costs each party bears their own costs.
Often used when there is effectively a draw or no party is at fault
re: general applications
explain [named party’s] costs and when this might be used
o named party is entitled to payment of costs by o/s
Normally summarily assessed and ordered to be paid within 14 days
Usually made when the applicant is successful with their application
re: general applications
explain costs in case and when this might be used
o neither party pays at this stage. The loser of the overall litigation will be liable to pay.
Might be used if a conditional order was granted
re: general applications
explain no order as to costs and when this might be used
o No order as to costs each party bears their own costs.
Often used when there is effectively a draw or no party is at fault
re: summary judgment
who can make this application?
- Application can be made by either C or D, but typically used by C if D files a weak defence
re: summary judgment
is permission required?
- Permission to make the application is not required unless they want to make the application before D has filed the AOS (this is unlikely to be successful)
re: summary judgment
when will D not need to file a defence?
- If C makes an application after D has filed the AOS but before filing the defence, D need not file a defence. If the application fails, the judge will give directions for the filing of the defence
re: summary judgment
will there be a hearing?
yes.
re: summary judgment
what happens at the hearing?
Each party puts forward why the claim should / should not continue (i.e. not arguments about liability of the overall claim)
re: summary judgment
what notice must the respondent be given of the hearing?
o The respondent must be given at least 14 days’ notice of the hearing
re: summary judgment
when must the respondent file any evidence?
o The respondent must file any evidence at least 7 days before the hearing
re: summary judgment
when must the applicant file evidence?
o The applicant must file any evidence at least 3 days before the hearing
re: summary judgment
on what grounds can the judge grant SJ?
explain what D and C need to prove respectively
It considers either:
C has no real prospect of succeeding with the claim; /
D has no real prospect of successfully defending the claim or issue; AND
o There is no other compelling reason why the case should be disposed of
If effect, a C applicant has to prove both elements for their application to be successful. Whereas a D respondent only needs to prove one limb to prevent the application for SJ.
re: summary judgment
what is meant by real prospect?
the claim/defence is not merely fanciful or unrealistic
re: summary judgment
give examples of ‘compelling reasons’
o The claim is complicated/technical and so a trial is needed
o Certain witnesses need to be heard from / tracked down
o More time to investigate the claim is needed
re: summary judgment
what ruling / orders can the judge make?
the judge can grant SJ on whole, part or none of the claim:
- Judgment on claim
- Strike out or dismissal
- Application is dismissed
- Conditional order
re: summary judgment
explain ‘judgment on claim’ and the effect of this
Judgment on claim = claimant successful
o Claimant will get the sought remedy plus interest & costs
Spec claim > fixed costs under part 45 but can ask for a summary assessment for a higher figure
Unspec claim > disposal hearing and summary assessment of costs
re: summary judgment
if there has been ‘judgment on claim’, what is the cost position?
Claimant will get the sought remedy plus interest & costs
Spec claim - fixed costs under part 45 but can ask for a summary assessment for a higher figure
Unspec claim - disposal hearing and summary assessment of costs
re: summary judgment
explain ‘strike out or dismissal’ and the effect of this
Strike out or dismissal = defendant successful
o Case comes to an end. C pays D’s costs to be summarily assessed.
re: summary judgment
if there has been ‘strike out or dismissal’, what is the cost position?
o Case comes to an end. C pays D’s costs to be summarily assessed.
re: summary judgment
explain application dismissed and the effect of this
o The matter will proceed to trial
o Unsuccessful party will pay the other party’s costs
re: summary judgment
if the application has been dismissed, what is the cost position?
o Unsuccessful party will pay the other party’s costs
re: summary judgment
explain conditional order and the effect of this
The court finds success at trial possible but not improbable (i.e. claim / defence may succeed). Neither party wins.
A party is usually asked to make payment (could be any action) as security to show that they are serious about pursing/defending the claim
i.e. D file a defence in X days and pay X money into the court. If they fail to do so then the defence will be struck out and C can enforce the claim.
Usual costs order - costs in the case
re: summary judgment
if there has been a ‘conditional order’, what is the cost position?
o Usual costs order = costs in the case
re: injunctions
who can apply?
- Either party can apply
re: injunctions
on what basis can an injunction be awarded?
- Injunctions are discretionary and can be granted on an interim or final basis
re: injunctions
what is an injunction?
- In general terms, an injunction is a court order that requires a person or entity to do or refrain from taking a specific action
re: injunctions
when can an interim injunction be granted?
o Interim injunctions can be granted prior to the commencement of proceedings or during proceedings. Also called ‘interlocutory injunctions’
o Interim inj. before commencement will only be granted where the court is satisfied it is urgent or otherwise desirable in the interests of justice
re: injunctions
what are specific types of injunction?
freezing inj. & search orders
re: injunctions
who can grant freezing injunctions and search orders?
o Only CJs in the CC and HCJs in the HC can grant these
re: injunctions
how are freezing injunction and search orders made?
o These can be made without notice and must be supported by an affidavit
re: injunctions
when can the court grant a standard interim injunction?
- The court can grant an injunction where it is ‘just and convenient’
re: injunctions
what will the court consider when deciding whether to grant an interim injunction?
When considering whether the grant an inj., the court will consider whether:
o There is a serious question to be tried;
o Damages are inadequate;
o The balance of convenience lies in favour of granting or refusing the inj.
o There are any other special factors
re: injunctions
how long are interim injunctions in place for?
- Interim injunctions are in place until the trial or further order
re: injunctions
what must an applicant to do obtain an interim injunction?
An N244 must be filed, along with:
o A witness statement (for interim injunction) / an affidavit (for FIs & SOs)
o A draft order should be included (not must)
re: injunctions
will there be a hearing?
- There will always be a hearing for this type of interim application
re: injunctions
what is the effect of breach of an injunction?
- Breach of an injunction is punishable by contempt of court
re: injunctions
what is a freezing order?
- An order that restrains a party from removing assets from the jurisdiction so as to defeat enforcement of an eventual judgment
re: injunctions
what must the applicant prove to obtain a freezing order?
o The applicant must have a good arguable claim and there must be a real risk the respondent will dispose of their assets so as to defeat the enforcement of an eventual judgment
o Applicant must provide prima facie evidence assets are in the jurisdiction
re: injunctions
what is a search order?
- An order that allows the applicant to search the respondent’s premises, copy and remove material specifically set out in the order i.e. searching a laptop.
re: injunctions
what must an application prove to obtain a search order?
Applicant must have an extremely strong prima facie evidence that:
o Very serious damage has / is likely to result from R’s actions;
o There are ‘incriminating documents or other things’ in R’s possession;
o There is a real possibility R will destruct / destroy this; and
o The material cannot be obtained by other means
re: injunctions
what is the position regarding applications made on notice?
- Applications made on notice must be served as soon as practicable after issue and not less than 3 days before the court is due to hear the application
re: injunctions
when can applications be made without notice?
- An application can be made without notice if it is urgent and there is good reason to do so. The reasons must be set out in the evidence.
- An application can be made without notice before a claim has been issued. The applicant will usually need to undertake to the court that they will issue a claim form immediately.
re: injunctions
if an application is made without notice, what will happen?
If the application is made without notice, the interim inj. will either:
o Fix a future hearing date and the II will be in place until this time. At which point the respondent can argue that it should be set aside; or
o Tell the respondent to apply on notice for the order to varied/set aside.
re: injunctions
what happens when an interim injunction is granted?
the applicant must undertake to pay damages to compensate for lost revenue suffered by the respondent if it later transpires that an inj. should not have been granted
re: injunctions
what will the applicant need to do in relation to the cross-undertaking?
- The applicant will need to provide a witness statement and evidence (i.e. bank statements) confirming their financial ability to satisfy the undertaking
re: injunctions
give an example of a cross-undertaking in action
- Example – C’s alleges D has infringed their copy right. C seeks an interim inj. to stop D selling the product. At trial, D proves they were not infringing copy right. D can claim damages for their loss of profits suffered between the date of the inj. and the trial.
re: interim payments
when would this application be made?
- If C has a strong case on liability, they can make an application for an interim payment from D for damages, debt or other sum but not inc. costs
re: interim payments
what is the purpose of this application?
o The purpose is for C to avoid financial hardship caused by delay
re: interim payments
what should C do before making this application?
- Before making the application, C should try to negotiate a voluntary payment with D / the insurer
re: interim payments
what must C do if this cannot be agreed?
If an agreement cannot be reached, C must file:
o An N244 application
o Witness statement (and relevant exhibited evidence) which sets out:
Why the requisite grounds under the CPR are satisfied; and
The amount requested and what it will be used for;
The sum likely to be awarded at final judgment
re: interim payments
what must the witness statement set out?
Why the requisite grounds under the CPR are satisfied; and
The amount requested and what it will be used for;
The sum likely to be awarded at final judgment
re: interim payments
what are the grounds for interim payment?
o D has admitted liability; or
o C has obtained judgment against D for damages to be assessed or for a sum of money; or
o The court is satisfied that if the case when to trial, C would obtain judgment for a substantial amount of money (other than costs) (this places a high burden on C. They must prove on the balance of probabilities that they will succeed at trial, not that they ‘may’ succeed)
re: interim payments
in what circumstances is this application likely to be granted?
- An IP will usually only be made if there is likely to be a delay in the assessment of damages i.e. because the situation is ongoing or complex
re: interim payments
when can this application be made?
C cannot make an application until the time for D to file the AOS has expired
re: interim payments
when must this application be served?
- The application must be served at least 14 days before the hearing
re: interim payments
when must D serve any evidence? what must their evidence include (if relevant)?
- D must serve any evidence at least 7 days before the hearing (inc. any allegations of contributory negligence, otherwise the court will calculate any IP on the basis of full liability)
re: interim payments
when must C file any evidence?
- C may file further evidence no later than 3 days before the hearing
re: interim payments
what power does the judge have in relation to the order they can grant?
- Even if C is entitled to the money, the judge has discretion as to whether or not to grant the order i.e. order unlikely if the issues are complicated
re: interim payments
if the judge does grant an order, what is the position regarding the possible award?
If the court does grant an order, the sum awarded:
o Cannot be for more than a reasonable portion of any likely final award; &
o Will take into account any contributory negligence or counterclaim
IP can be as a lump sum or instalments
re: interim payments
can the party discontinue a claim if an IP has been made?
If an interim payment has been made, C can only discontinue the claim if:
o D who made the payment consents; or
o The court gives permission
re: interim payments
what is the trial judge not told about?
- The trial judge will not be told about any IP until liability and quantum have been resolved, unless parties agree
re: non-party costs
when might a party make this application?
- if it appears a party has no assets to pay a judgment
re: non-party costs
when would this application be granted?
- Would only be granted in exceptional circumstances where the non-party had a real interest in the litigation or was responsible for bringing the proceedings
re: non-party costs
what is the process?
- The third party would be added to the proceedings and may attend the hearing where costs are decided
- There is no requirement to make a finding that the non-party acted improperly
re: non-party costs
which category of person/group is this applicable to?
Family members / people who contributed to a fund-raising campaign are not at risk, but formal funders may be i.e. a litigation funding company or where C is a company but it transpires the director was driving and funding the claim
re: security for costs
who can make this application?
- D (or D to a counterclaim) can apply (with evidence) for a SFC order
re: security for costs
when will the court grant this application?
The court has a discretionary power to make an SFC if:
o Having regard to all the circumstances, it is just to make the order; and
o One or more of the Part 25 conditions applies
re: security for costs
what happens if this application is granted?
- If granted, C would need to provide security to the court which would then be paid to D if they win the litigation.
re: security for costs
what factors will the court consider when considering ‘justness’?
a) The strength of the claim and defence
b) C’s ability to provide security
c) If D’s behaviour has caused/contributed to C’s impecuniosity (poor finances)
d) If C is outside the EU, an SFC is less likely if they have assets in E&W
e) Promptness of the application
re: security for costs
explain ‘the strength of the claim and defence’
weak defence = SFC less likely.
Court looks at prospect of success, not merits of the claim.
If there is no real prospect of success SFC & SJ should be applied for.
re: security for costs
explain ‘C’s ability to provide security’
if C would be unable to pay the security, SFC less likely as this would stifle the claim.
re: security for costs
explain ‘If D’s behaviour has caused/contributed to C’s impecuniosity’
i.e. C sues D for BOC. C can prove their impecuniosity is due to BOC
re: security for costs
what are the Part 25 conditions?
a) C is outside E&W and the country is not party to the Hague Convention
b) C is an impecunious company
c) C has changed address to evade litigation / gave an incorrect address on the claim form
d) C has taken steps to make enforcement more difficult
re: security for costs
what is C’s location for the purposes of ‘C is outside E&W and the country is not party to the Hague Convention’
- Individuals where they normally live
- Companies where their central control and management is located
re: security for costs
explain ‘C is an impecunious company’
D must establish there is reason to believe C will be unable to pay costs if ordered to do so, evidence of C’s financial assets and total costs of litigation will be essential.
re: security for costs
explain ‘C has taken steps to make enforcement more difficult’
the court considers the effect and not the motivation i.e. C moves to Saudi Arabia to take up new employment – SFC likely. Failure to disclose assets likely to be sufficient
It doesn’t matter how long ago C made themselves ‘judgment proof’.
C may try to argue they do not have assets / are funded by a third party. If they cannot provide evidence, the court can draw inferences of hidden ass
ets
Freezing injunction may also be appropriate.
re: security of costs
what is the procedure?
- Write to C and ask for voluntary security
- If C refused, D files an application inc. a w/s setting out: conditions, why the court should exercise discretion and justify the amount sought
- If granted, the order will specify: the form (i.e. money, guarantee, charge on property), amount and payment date
* Usually paid to the court but may be paid to D’s solicitor - Claim is stayed until security is provided. CPR doesn’t state what will happen if security is not paid, but they will likely make an unless order.
re: security of costs
what must be included in the w/s?
conditions, why the court should exercise discretion and justify the amount sought
re: security of costs
what will happen if the order is granted?
the security is paid to the court but may be paid to D’s solicitor
the claim is stayed until security is provided. CPR doesn’t state what will happen if security is not paid, but they will likely make an unless order.
re: security of costs
what will the order typically state?
the order will specify: the form (i.e. money, guarantee, charge on property), amount and payment date
