Interim applications

Question 1

What is an interim application?

Answer 1

Applications for orders or directions made to the court usually in the ‘interim period’ between the commencement of proceedings and trial, although some interim applications can be made before the commencement of proceedings

Examples:
- extending the time period for taking a particular step in the proceedings
- applying to amend a statement of case
- requiring the other party to provide further information
- requesting specific disclosure of a document
- seeking permission to rely on expert evidence

Question 2

When should an interim application be made?

Answer 2

• In compliance with the overriding objective, parties should take a reasonable approach to trying to agree matters to avoid the need for an application less contentious
• As soon as it is apparent that it is necessary to desirable to make an application the party should apply

Some applications could be dealt with at the same time as the case management conference or pre-trial review

Parties under obligation to ‘bunch’ their interim applications

Question 3

Procedure for issuing an interim application

Answer 3

1. Application notice (Form N244)
   - who is making application
   - what order the applicant wants
   - why the applicant is asking for that order
   - what information the applicant relies on in support of the application
   Note: court fee is payable
2. Evidence
   - needed to support application (usually as a witness statement)
   - can be given in the form, referring to existing statement of case, or as a witness statement
3. Draft order
   - need to file a draft order

Court will issue application and provide a notice indicting the date and time that the application will be heard by the court

Question 4

Service of interim application notice

Answer 4

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

• court can serve
• or applicants solicitor (more common)
• Statement of costs needs to be field mot less than 24 hours before the hearing

Question 5

Respondents evidence

Answer 5

• may be filed and served as soon as possible and in accordance with any specific timings stated by the court when it issued the application notice.

Applicant can file more evidence in reply as soon as possible

Question 6

Without notice applications

Answer 6

This is an interim application without serving the application notice on the respondent. Permitted only where:
1. exceptional urgency

2. overriding objective is best furthered by doing so
3. all parties consent
4. the court gives permission
5. a court order, rule or practice direction permits
6. a date for a hearing as been fixed and a party wishes to make an application at that hearing and the party does not have sufficient time to serve an application notice. Party should still inform the other party and the court as soon as he can of the nature of the application and the reason for it

Question 7

Without notice: procedural safeguards

Answer 7

To mitigate risks of unfairness:

1. The application must explain why no notice is given
2. Applicant must draw to the court’s attention arguments and evidence in support of the respondent’s position
3. Applicant must serve the respondent as soon as possible after the hearing whether or not the court has granted the relief sought. Documents:
   - application notice
   - evidence in support
   - order
4. 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 be made within 7 days of the order being served on the other party

Question 8

What is the purpose of summary judgment?

Answer 8

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 the trial - this saves costs.

Furthers the overriding objective because it allows courts to deal with weak cases or issues proportionately and expeditiously

Either party can apply.

Question 9

Difference between summary judgment and strike out

Answer 9

• Considerable overlap
• Common to combine these two applications
• Court can strike out whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim or which is an abuse of process of the court or otherwise likely to obstruct the just disposal of proceedings
• Court can give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on their claim or defence

Question 10

Difference between summary judgement and default judgment

Answer 10

Judgment in default can be the consequence of the defendant failing to respond to the claim. Judgment in default is therefore procedural: if a defendant fails to file an acknowledgment of service and/or a defence in accordance with the CPR time limits. The claimant can obtain judgment in default by either request or application.

The court does not consider the merits of the case when ordering judgment in default.

Question 11

Grounds for default judgment

Answer 11

1)
- Claimant has no real prospect of succeeding on the claim or issue;
or
- Defendant 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 12

Evidence supporting application for summary judgment

Answer 12

Must address the grounds set out in the test.

Supporting evidence (usually a witness statement) must also:
- identify concisely any point of law or provision in a document on which the applicant relies; and

• state the application is made because the applicant believes that on the evidence the respondent has no real prospect of success and knows of no other compelling reason why the claim/issue should be disposed of at trial

Question 13

Who can apply for summary judgment and when?

Answer 13

Claimant: after defendant has filed an acknowledgement of service or defence.

Defendant: Can apply anytime after proceedings have commenced

Court: Can fix hearing of its own initiative

Question 14

Effect of summary judgment

Answer 14

Effect is to create a pause in the proceedings while the application is being decided so that:

• 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

Note: if the claimant fails to comply with 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.

Question 15

Application for summary judgment

Answer 15

1. Issue:
   - Application notice (form N244)
   - Supporting evidence
   - Draft order
2. Service:
   - at least 14 days before the hearing
   - serve:
   + application notice
   + supporting evidence
   + draft order
   + notice of hearing date
3. Further evidence
   - R files at court and serves on the applicant evidence at least 7 days before the hearing
   - Applicant’s reply evidence at least 3 days before the hearing
4. Costs
   - both parties file and exchange statements of costs not less than 24 hours before the hearing

Question 16

What is in the application notice for summary judgement

Answer 16

Notice must:
- include a statement that it is an application for summary judgment under Part 24

• Direct the respondent’s attention to the CPR which require the respondent to file and serve any evidence at least 7 days before the summary judgment hearing

These provisions make it clear to the respondent what is at stake in the application and how the respondent can oppose the application

Question 17

Potential orders at summary judgment hearing

Answer 17

1. Dismissal of application
   Application fails. Issues must continue to trial and court will give directions to take the claim forward
2. Dismissal of the claim
   If defend applies and succeeds the claim is dismissed and defendant has ‘won’
3. Judgment on the claim
   If the claimant applies for summary judgment and succeeds then judgment is entered for the claimant and claimant has ‘won’
4. Conditional order
   Judge has decided that the respondent may succeed but it is improbable they will do so - the court will refuse summary judgment and allow the respondent to continue only subject to conditions ordered by the court such as paying a sum of money into court

Question 18

Purpose of an interim payment

Answer 18

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

May wish to ask for an interim payment to assist it financially in the interim period prior to settlement e.g. personal injury claim. Any payment would be made on account of damages.

Note: made by claimant

Question 19

Conditions for interim payment

Answer 19

1) CPR 25
a) defendant has admitted liability to pay damages (or other sum) to the claimant

b) Claimant has obtained judgment against the defendant for damages to be assessed

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

2) Payment must be a reasonable proportion of the likely amount of the final judgment

3) Court will take into account contributory negligence, set-off or counterclaim

Question 20

Evidence for an interim payment

Answer 20

Usually in the form of a witness statement:

• Reasons for believing that the condition for making an interim payment are satisfied
• Sum of money for which the final judgment is likely to be given
• Sum of money sought by way of an interim payment
• Items or matters in respect of which the interim payment is sought
• Any other relevant matters
• PI: special damages, past and future losses
• If fatal accident, details of the person on whose behalf the claim is being made

Any documents in support should be exhibited

Question 21

Procedure for interim payment

Answer 21

• First make a request for a voluntary payment from the defendant first. If defendant does not agree, the claimant would make an application to the court for an interim payment
• Claimant can make a request at any time but cannot apply to the court before the end of the period for the defendant filing an acknowledgment of service
• Claimant can make more than one application for an interim payment

Question 22

Making an application for an interim payment

Answer 22

1. Issue
   - Application notice (form N244)
   - Supporting evidence
   - Draft order
   - Fee
2. Service
   - Service at least 14 days before the hearing
   - Application notice
   - supporting evidence
   - draft order
   - notice of hearing date
3. Further evidence
   - Respondent files at court and serves on the applicant evidence at least 7 days before the hearing
   - Applicant files at court and serves on the respondent evidence at least 3 days before hearing
4. Costs
   - Parties file and exchange statements of costs not less than 24 hours before the hearing

Question 23

Restrictions for interim payment

Answer 23

• Unless defendant agrees, an interim payment made by a defendant in the course of proceedings (whether voluntarily or court order) will not be disclosed to the trial judge until all questions of quantum and liability have been decided

Question 24

What is the purpose of security for costs?

Answer 24

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

Court can order that security be given in various ways, but most commonly it requires a payment into court by the claimant so that those funds are available to meet any costs order later made in the defendant’s favour.

Note: relates solely to the costs of the claim not damages

Question 25

Who can make an application for security for costs?

Answer 25

An application can be made:

• by a defendant against a claimant (usual)
• 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 26

Grounds for security for costs

Answer 26

1) One or more of the prescribed conditions in the rules are satisfied

and

2) Having regard to all the circumstances of the case it is just to make an order

Also consider:
- overriding objective (dealing with cases justly and at proportionate cost by making a security for costs order )

Question 27

Prescribed conditions for security for costs

Answer 27

a) The claimant is resident out of the jurisdiction (but not in 2005 Hague Convention State)

C) 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

d) The claimant has changed addresses since the claim was commenced with a view to evading the consequences of the litigation

e) The claimant failed to give an address in the claim form

f) Claimant is acting as a nominal claimant and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so

Question 28

Claimant is resident out of the jurisdiction (CPR 25.13(2)(a))

Answer 28

Resident:
- Individual: habitual or normal residence
- Company: central management and control (not necessary incorporation)

Out of jurisdiction:
Not in England and Wales - rationale it will be more difficult to enforce any costs order not in Uk, EU, Mexico, Singapore and Montenegro

Question 29

Impecunious company (CPR 25.13(2)(c))

Answer 29

Must show:

1) company’s inability to pay costs; and

2) amount of the likely costs

Must show: will be unable (not may be unable) to pay its debts when an order is made against it
- but just needs to show there is a reason to believe that the claimant will be unable to pay even if company produces evidence to the contrary
Jirehouse Capital v Beller

Question 30

Claimant moving assets (CPR 25.13(2)(g))

Answer 30

Prevent injustice to defendant where asses available to enforce any order are put beyond reach of enforcement e.g. transfer overseas

Question 31

Security for costs: court’s discretion

Answer 31

Court is not obliged to give the order:

Court must be satisfied having regard to all the circumstances that it is just to make such an order

Main consideration:
- ability of the respondent to comply with the order
- should not make it impossible for the defendant to fulfil
- must balance the injustice to the claimant from being prevented to continue the claim if it cannot pay the security against the injustice of the defendant being at risk on costs if no security is provided

Other factors;
- admission of liability by defendant make it less likely
- delay in application makes it less likely (be prompt!)
- if claim has little prospect of success makes order more likely
- if defendant is responsible for the claimant’s impecuniosity this makes it less likely to succeed

Question 32

Procedure for security for costs

Answer 32

• Application notice should state the grounds on which the enactment applies
• application must be supported by written evidence. Normally given by way of a witness statement:
  +impecunious company = WS should exhibit account or other information showing they are unlikely to be able to pay
  +factors in court’s exercise of discretion
  + likely costs to trial
  + amount of security requested

Question 33

Amount of security

Answer 33

Amount is entirely within the court’s discretion and the court will fix a sum it thinks just taking into account:

• amount of defendant’s likely costs
• security for whole action or up to a point
• amount to cover incurred costs or/and future
• deduction can be made for reduction on assessment or possibility of settling
• other factors: e.g. delay, may mean security isn’t given for costs already incurred but is given for future costs

Question 34

Type and timing of security

Answer 34

Manner in which security is given can be:
- a payment into court
- a payment to defendant’s solicitor
- a bank guarantee
- an undertaking to pay costs

Most common: sum to be paid into court

Question 35

What is an injunction?

Answer 35

An order by the court requiring a party to do or to refrain from doing a given act. Breach of an injunction is potentially punishable as contempt of court, so breach can result in a fine and/or imprisonment

Question 36

What is an interim injunction?

Answer 36

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 or urgency and lasts until trial or further order.

Question 37

Prohibitory injunction

Answer 37

Requires the respondent to refrain from doing an act

Question 38

Mandatory injunction

Answer 38

Requires the respondent to do a specific act

Question 39

Quia timet injunctions

Answer 39

Allow both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed

Question 40

When will an injunction be granted?

Answer 40

An injunction may be granted where it is just and convenient. It is an equitable and discretionary remedy.

American Cyanamid Guidelines: show how the court should exercise its discretion to grant an interim injunction.

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?
- damages for the applicant
- damages for the respondent

Step 3: Where does the balance of convenience lie?

Question 41

Step 1: Serious question to be tried

Answer 41

An injunction is a remedy not a cause of action.

An applicant therefore cannot sue for an injunction.

Court must be satisfied that this is not “frivolous or vexatious” and that there is a serious question to be tried.

Not very difficult to surmount.

Question 42

Step 2: would damages be an adequate remedy for a party injured by the court’s grant of or failure to grant an injunction?

Answer 42

Court first considers from the applicant’s perspective and then from the respondent’s perspective.

Applicant;
Court will generally refuse an injunction if the applicant could be adequately compensated by damages for any loss caused by refusal to grant an injunction.
Damages will be inadequate where respondent has no means of paying them, harm caused is irreparable, cannot be quantified, or is serious and likely to continue.

Respondent:
If injunction is granted, but it transpires it should never have been granted in the first instance the court will ask whether damages will be adequate compensation for this. If they are it suggests the injunction should be granted.

Question 43

Step 3: balance of convenience

Answer 43

If it appears that damages would be adequate for neither party, then the court will consider a very broad range of factors to try and ascertain whether granting or not granting the injunction carries the lesser risk of injustice to ascertain where the balance of convenience lies.

Question 44

Equitable and discretionary remedy

Answer 44

Equitable principles which apply:
1. an inunction will not be obtained when it would serve no practical purpose

2. the court might refuse to grant an injunction if the applicant has not come to court with clean hands
3. Excessive delay may lead to a refusal of the application.

DISCRETIONARY - no automatic right to an injunction.

Question 45

Procedure: interim injunction - undertakings

Answer 45

When granting will require applicant to offer a 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. It is there for the protection of the respondent but the court can also require an undertaking to be given for the protection of any other person who may suffer loss because of the order.

Question 46

Interim injunction procedure: without notice safeguards

Answer 46

If application is made without notice and injunction is granted, it will initially be granted 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 that at that second hearing the court can make the following orders:

• maintain order
• discharge the injunction
• vary the terms of the injunction
• enforce applicant’s undertaking in damages if it should not have been granted
• accept an undertaking by the respondent not to do the acts in question in place of the injunction

Question 47

Full and frank disclosure - without notice

Answer 47

In a without notice hearing, 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)

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 48

Interim injunction applications before a claim is issued

Answer 48

Matter must be:

• urgent; or
• otherwise in the interests of justice to do so

Applicant must also undertake to the court to issue a claim form immediately