Interim applications

Question 1

When should a party apply for an interim application?

Answer 1

as soon as it becomes apparent that it is necessary or desirable to make an application

Question 2

Procedure for interim applications - what do you need to file at court

Answer 2

Application notice
Evidence
Draft order (setting out the terms the applicant is seeking)
Court fee

Question 3

Procedure for interim applications - what do you need to serve on the respondent? And when?

Answer 3

Application notice
Note from the court indicating the date and time of the hearing
Evidence
Draft order
As soon as practicable, but no less than 3 clear days before the application is heard

Question 4

When do you need to file a statement of costs?

Answer 4

Not less than 24h before the hearing

Question 5

Without notice applications - when can you make one?

Answer 5

An alternative procedure is to make an application ‘without notice’ – without serving the application notice on the respondent. This is permitted only if (23A PD 3):
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 6

What are procedural safeguards for without notice hearings?

Answer 6

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 relevant documents.
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

Question 7

What is summary judgment?

Answer 7

The purpose of summary judgment is to enable the court to dispose of claims or issues without the need for a full trial
. The court may give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on their claim or defence

Question 8

Grounds fro summary judgment?

Answer 8

A:
The claimant has no real prospect of succeeding on the claim or issue;
OR
The defendant has no real prospect of successfully defending the claim or issue.
B:
There is no other compelling reason why the case or issue should be disposed of at trial.

Question 9

Summary judgment - no real prospect: what does It mean?

Answer 9

Fanciful, imaginary, or false position

Question 10

Summary judgment - examples of other compelling reasons

Answer 10

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 11

Who can apply for a summary judgment and when?

Answer 11

Claimant- After the defendant has filed an acknowledgement of service or 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 12

Effect of summary judgment on the proceedings

Answer 12

If the claimant applies for summary judgment before the defendant has served a defence, the time for the defendant to file a defence is extended until after the hearing
If the defendant applies for summary judgment, the defendant does not have to file either an acknowledgement of service or a defence until after the summary judgment hearing.

Question 13

Procedure for summary judgment application

Answer 13

Issue:
Application notice (form N244)
Supporting evidence
Draft order
Fee
Service (at least 14 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 at least 7 days before hearing
Applicant files at court and serves on the respondent evidence in reply at least 3 days before hearing
Both parties file and exchange statements of costs not less than 24 hours before hearing.
Hearing

Question 14

Orders that can be given at summary judgment hearing and their meaning

Answer 14

Dismissal of the application - application fail and the issue will continue to trial
Dismissal of the claim - D applies for summary judgment and wins
Judgment on the claim - C applies for summary judgment and wins
Conditional order - allowing for the claim to continue subject to conditions

Question 15

Interim payment - what is it?

Answer 15

An interim payment is a payment on account of damages, dent or other sum (except costs) which a defendant may be held liable to pay to a claimant

Question 16

Who can made an application for an interim payment?

Answer 16

Only C

Question 17

What conditions must be satisfied for the court to make an order for interim payment?

Answer 17

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 18

Do you need the court’s permission to get an interim payment?

Answer 18

NO, you can ask D directly for payment first, and if they refuse then apply to court (but asking D is not a necessary condition to be fulfilled before applying to court)

Question 19

When can C apply for an interim payment?

Answer 19

After D filed acknowledging of service or the period for filing acknowledging service finished

Question 20

How to make an application for summary judgment

Answer 20

Issue:
Application notice (form N244)
Supporting evidence
Draft order
Fee
Service (at least 14 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 at least 7 days before hearing
Applicant files at court and serves on the respondent evidence in reply at least 3 days before hearing
Both parties file and exchange statements of costs not less than 24 hours before hearing.
Hearing

Question 21

Security for costs - what is it?

Answer 21

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
Note that security for costs relates solely to the costs of the claim, not the level of damages which may be awarded.

Question 22

Who can made an application for security for costs?

Answer 22

D against C
By a claimant against a defendant in respect of a counterclaim
By a third party against a defendant in respect of an additional claim

Question 23

Grounds for security for costs

Answer 23

The defendant must satisfy the court of two matters before an order for security for costs can be made:
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:
The claimant is resident out of the jurisdiction
The claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so
The claimant has taken steps in relation to its assets that would make enforcement of a costs order against it difficult

Question 24

Security for cost - C resident out of the jurisdiction

Answer 24

BUT not resident in a state bound by the Hague Convention
Meaning of resident:
For an individual this is their habitual or normal residence.
For a company this is where the company’s central management and control is exercised and it is usually, but not necessarily, where it is incorporated.

Question 25

Security for costs - impecunious claimant company

Answer 25

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
The defendant must show: a) The company’s inability to pay costs; and b) the amount of the likely costs.
The defendant must show the company ‘will be unable’ (as opposed to ‘may be unable’) to pay its debts when the order is made against it.

Question 26

Considerations taken into account when considering security for costs application

Answer 26

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.
Main consideration
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.
Other consideration
D’s admission of liability, appearing not genuine, little prospect of success or delay in making the application can make 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
2 weeks before trial is too late if you knew about the conditions from the outset -> so claim might not succeed

Question 27

Interim injunction - what is it? What are consequences of breaching it?

Answer 27

An interim injunction is an order of the court requiring a party to do or to refrain from doing a given act. It is usually made in circumstances of urgency and lasts until trial or further order
Breach of an injunction is potentially punishable as contempt of court, so breach can result in a fine and/or imprisonment.

Question 28

Perpetual injunction - what is it?

Answer 28

A perpetual injunction is a final injunction (usually made at trial) that continues with no limitation of time

Question 29

Prohibitory injunction vs mandatory injunction vs quia timet injunction

Answer 29

Prohibitory injunction:
Requires the respondent to refrain from doing an act
Mandatory injunction:
Requires the respondent to do a specific act
Quia timet injunctions:
Allow both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed

Question 30

interim injunction test

Answer 30

An injunction may be granted where it is just and convenient (American Cyanamid guidelines)
Step 1: Is there a serious question to be tried?
Step 2: Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction? (applicant’s perspective considered first)
Damages for the applicant?
Damages for the respondent?
Step 3: Where does the balance of convenience lie? (granting or not granting the injunction carries a lesser risk of injustice)

Question 31

Interim injunctions - without notice safeguards

Answer 31

If the injunction is granted, it will be granted initially for a limited period only and the court will fix a second hearing called the ‘return date’.
The respondent will be given notice of that hearing and the opportunity to attend it to make representations, and at that second hearing, the court can maintain order, discharge injunction or vary its terms etc.
the applicant must make full and frank disclosure of all matters of fact or law relevant to the application – including those which are or may be adverse to the applicant.
The applicant’s legal representatives must prepare a full note of the hearing as soon as possible and this should also be served on the respondent without delay

Question 32

Can you make an application for an interim injunction before the claim is issued?

Answer 32

In cases of exceptional urgency, not only can a party apply for an interim injunction without notice but a party can apply before a claim form has even been issued.
The court will only grant an interim remedy before a claim has been issued 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.