Interim Applications Flashcards
What is an interim application?
Interim applications are applications made to the court by one of the parties to litigation after a claim has been commenced but BEFORE it has reached trial. The applicant requests that the court either makes an order or issues directions. The respondent will be the party against whom the application is made.
NOTE: Applicant can be either claimant or defendant depending on the nature of the application. Use applicant / respondent when dealing with interim applications.
Why are interim applications made?
1) Early determination - Applications to determine the case early: Summary judgment or strike out.
2) Security - Applications that give one of the parties some security pending the trial’s outcome: An interim injunction, interim payment, or security for costs.
3) Progressing the case - Applications to help the case move forward and prepare it for trial: Applications for specific disclosure, permission to adduce expert evidence or to amend a statement of case
What are the documentary requirements for an interim application?
Procedure for making an interim application:
1) Application notice form (requests court to make an order/direction and specifies the type of order or direction)
2) Draft order
3) Evidence (witness statement - details of why order or direction is requested and evidence to support facts being relied upon)
4) Skeleton argument (if claim is in the High Court)
What is the procedure for a ‘with notice’ interim application?
With notice applications procedure:
- Applicant files relevant documents with the court
- Court issues application and sends out notice to parties informing them of time and date of hearing
- Application notice, draft order and evidence must be served on respondent at least 3 days before hearing date
- Respondent must serve any evidence they wish to rely upon as soon as possible
- Applicant can respond with further evidence if they wish
- Hearing: Court will decide whether to grant the application and make the order / direction sought by the applicant or to reject the application
When are applications made without notice to the respondent?
Without notice applications: Made in exceptional circumstances (search order or freezing order to prevent dissemination of assets)
What is the procedure for a ‘without notice’ interim application?
Without notice applications procedure:
- Same documentary requirements as for applications with notice
- Applicant is under a duty to make full and fair disclosure of material information to the court in a witness statement. Applicant must provide the court with a full picture of relevant evidence including any which is adverse to their interests.
- Respondent does not have opportunity to put forward their own arguments
- If court grants interim application and makes an order, the applicant must serve on the respondent the application notice, evidence, court order and brief statement explaining respondent’s right to have order set aside within 7 days of it being granted
- Hearing: Court may set a date for matter to return to court for full hearing with both parties
What is summary judgment as an interim application?
Summary judgment is judgment before trial in order to dispose of the entire case, or some of the issues in a case, where the defence or claim is unlikely to succeed based on a point of law or evidence.
The respondent to an application for summary judgment must be given 14 clear days’ notice before the date fixed for the hearing.
What is the 2-stage test required for summary judgment applications?
The respondent has:
1) “no real prospect of succeeding in the claim or defence” and
2) “there is no other compelling reason why the case should wait until trial.”
For the second limb of the 2-stage summary judgment test, what will be a ‘compelling reason’?
Compelling reasons for trial: Important evidence which is not yet clear, witnesses should be heard at trial, matter is very complex and is of public interest, expert evidence required on technical / complex matters
What types of orders can the court make following a summary judgment application?
Judgment on the claim (claim will not proceed to trial);
Dismissal of the claim
Dismissal of the application
Conditional order (claim can continue but D should file proper defence within 14 days of date of hearing)
Costs order
What is strike out as an interim application?
The court has the power to strike out any statement of case from the proceedings if “there are no reasonable grounds for bringing or defending the claim.”
Strike out can also be ordered for “bad conduct”.
What is an interim injunction?
An interim injunction is an order that requires a party to either do something specific or refrain from doing something specific pending a full trial taking place
What are the specified grounds for lodging an interim injunction application?
Grounds for an interim injunction:
1) [Serious issue] Is there a serious issue to be tried?
2) [Damages] Would damages be an adequate remedy?
3) [Balance of convenience] Where does the balance of convenience lie between the claimant and defendant?
4) [Special factors] Are there any other special factors?
What is a freezing injunction? (type of interim injunction)
Order that prevents the respondent from disposing of their assets before trial. The applicant must show that there is a real risk of the defendant dissipating their assets to protect their wealth and assets from being paid or transferred to the applicant.
Evidence in support of this without notice application must be in the form of an affidavit rather than a witness statement.
What is a search order? (type of interim injunction)
Order that allows an applicant to enter the premises of the respondent to search for and take copies of evidence required for a court case
What is an interim payment?
Payment by D for any damages, debt or other sum (except for costs) which the court may hold the defendant liable to pay. It can be ordered following an independent application or as part of a conditional order following an application for summary judgment.
What evidence is required for an application for an interim payment?
The claimant must prove one of the following grounds for their interim payment application to be successful:
- [D admits liability] The defendant has admitted liability for damages;
- [C obtains judgment] 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;
- [Court’s satisfaction] The court is satisfied that if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant
What is meant by security for costs?
Payment by C to provide security for the defendant’s costs (but not damages) in order to cover the possibility of the claimant losing at trial and the risk of the defendant not obtaining payment of costs from the claimant for their legal fees
