Interim Applications

Question 1

What is an interim application?

Answer 1

Interim applications are applications for orders or directions made to the Court, usually in the ‘interim’ period between the commencement of proceedings and trial.

Question 2

When should an interim application be made?

Answer 2

As soon as it becomes apparent that it is necessary or desirable to make an application, the party should apply.

Question 3

When must an interim application be served on the respondent?

Answer 3

As soon as practicable after the application is filed and not less than three clear days before the application is to be heard.

Question 4

When must the respondent’s evidence to an interim application be served?

Answer 4

The respondent’s evidence must be filed and served as soon as possible and in accordance with any specific timings stated by the Court.

Question 5

When must a statement of costs in relation to an interim application be filed/exchanged?

Answer 5

Not less than 24 hours before the hearing.

Question 6

What is a without notice application and when are they permitted?

Answer 6

An application which is not served on the respondent. This is permitted only if (23A PD 3):

-there is exceptional urgency;
-the overriding objective is best furthered by doing so;
-all parties consent;
-the Court gives permission;
-Court order, rule or PD permits; or
-a date for a hearing has been fixed, a party wishes to make an application at that hearing but does not have sufficient time to serve an application notice

Question 7

What procedural safeguards are in place to mitigate the risks of unfairness in without notice applications?

Answer 7

-Applicant must explain why no notice is given

-Applicant must draw to the Court’s attention arguments/evidence in support of the respondent’s position

-Applicant must serve on the respondent as soon as possible after the hearing

-The Court order must contain a statement of the respondent’s right to make an application to set aside or vary the order, to be made within 7 days of the order being served on the other party

Question 8

What is the purpose of summary judgment and what happens if it is granted?

Answer 8

The purpose of summary judgment is to enable the Court to dispose of claims or issues without the need for a full trial.

If summary judgment is granted on an issue, that issue is no longer considered at trial which saves costs and furthers the overriding objective.

Question 9

What are the two grounds for summary judgment?

Answer 9

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

Question 10

Who can apply for summary judgment and at what time?

Answer 10

Claimant-after the D has filed an AOS/defence or earlier with the Court’s permission.

Defendant-can apply anytime after proceedings have commenced.

Court-can fix hearing of its own initiative.

Question 11

What is the effect of a summary judgment application by the C before the D has served a defence?

Answer 11

The time for the D to file a defence is extended until after the hearing.

Question 12

What is the effect of a summary judgment application by the D?

Answer 12

The D does not have to file either an AOS/defence until after the hearing.

Question 13

When must an applicant serve a summary judgment application on the respondent?

Answer 13

At least 14 days before the hearing.

Question 14

When must the respondent’s evidence to a summary judgment application be served?

Answer 14

At least 7 days before the hearing.

Question 15

When must further evidence from the applicant be served before a summary judgment application hearing?

Answer 15

At least 3 days before the hearing.

Question 16

What is an interim payment?

Answer 16

An interim payment is a payment on account of damages, debt or other sum which a D may be held liable to pay to a C.

Question 17

What conditions must be satisfied to obtain an order for interim payment?

Answer 17

The Court will only make an order where any of the following conditions are satisfied:

-the D has admitted liability to pay damages to the C

-the C has obtained judgment against the D for damages to be assessed

-it is satisfied that, if the claim went to trial, the C would obtain judgment for a substantial amount of money against the D from whom he is seeking an order for an interim payment

Question 18

Should a C seeking an interim payment make a request for voluntary payment first?

Answer 18

Yes, a request for a voluntary payment from the D first and make an application to the court if the D does not agree.

Question 19

Can the C apply to the Court for an interim payment before the end of the period for the D filing an AOS?

Answer 19

No!

Question 20

When must an applicant serve a interim payment application on the respondent?

Answer 20

At least 14 days before the hearing.

Question 21

When must the respondent’s evidence to an interim payment application be served?

Answer 21

At least 7 days before the hearing.

Question 22

When must further evidence from the applicant be served before a interim payment application hearing?

Answer 22

At least 3 days before the hearing.

Question 23

Can an interim payment be disclosed to a trial judge?

Answer 23

No, it will not be disclosed until all questions of liability and quantum have been decided (unless the D agrees otherwise).

Question 24

What is a security for costs application?

Answer 24

Security for costs is an application made by a person in the position of D who is concerned that the C will not be willing/able to pay the D’s costs should the claim be successfully defended.

Question 25

What are the two grounds that must be satisfied for the Court to make an order for security for costs?

Answer 25

-Having regard to all the circumstances of the case, it is just to make an order; and

-One or more of the prescribed conditions in the rules are satisfied

Question 26

What are the prescribed conditions for security for costs?

Answer 26

-The C is a resident out of the jurisdiction (but is not a resident in a State bound by the 2005 Hague Convention)

-The C is a company and there is reason to believe it will be unable to pay the D’s costs if ordered to do so

-The C has taken steps in relation to its assets that would make enforcement of a costs order against it difficult

Question 27

What procedural rules apply to applications for security for costs?

Answer 27

The normal rules relating to interim applications apply. In addition, the application notice should:

-State which grounds or enactment apples

-must be supported by witness evidence

Question 28

What is an interim injunction?

Answer 28

A temporary measure taken at an early stage in the proceedings before trial and before any final decision on the merits of either party’s cases 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.

Question 29

When may an injunction be granted?

Answer 29

An injunction may be granted where it is just and convenient (s37 Senior Courts Act 1981).

Question 30

What are the American Cyanamid guidelines on the granting of an interim injunction?

Answer 30

1. Is there a serious question to be tried?
2. Would damages be an adequate remedy for a party injured by the Court’s grant of, or failure to grant, an injunction?
3. The balance of convenience

Question 31

What is a cross-undertaking in the context of interim injunctions?

Answer 31

An agreement from the applicant to pay damages to the respondent for any loss sustained by the reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction.

Question 32

If an interim injunction application is made without notice and granted, what is the return date?

Answer 32

A second hearing after the initial hearing where the respondent will be given opportunity to attend it to make representations.

The applicant’s legal representatives must provide a full note of the initial hearing as soon as possible and serve it on the respondent without further delay, to enable the respondent to understand what case it has to meet at the second hearing.

Question 33

When may the Court grant an interim injunction before a claim form has been issued?

Answer 33

If the matter is:

-urgent; or
-it is otherwise desirable to do so in the interests of justice.

In these circumstances, the applicant must undertake to the court to issue a claim form immediately.