Interim Applications Flashcards
What is the purpose of an interim application?
Applications made after litigation starts but before trial are known as interim applications
They are mainly used to ensure that the case proceeds as quickly and efficiently as possible in accordance with the overriding objective
They can be used to obtain directions from the court to push the matter forwards, to obtain clarification of any issues or to seek a particular remedy
What should the parties do before seeking an interim application?
Parties should seek to resolve matters between them before applying to court, usually by exchanging correspondence
What is the procedure for seeking an interim application?
1) The applicant must complete an application notice and Form N244 should be used – the other party is the respondent
2) Application must be made to the court where the claim started
3) Application must state what order is being sought and why, and be verified by a statement of truth; may also be accompanied by a witness statement
- Witness statement should include the factual information and the evidence in support of the application and anticipate the opponent’s case, where appropriate
4) Applicant should attach a draft of the order sought to assist the judge
5) If parties agree on the order they need, they can apply to the court for an order to be made by consent, without the need for attendance at the hearing
When should notice be served on the other party?
Application notice must be served on the opponent at least three clear days before the court hearing to allow the other party to respond
2) Date of service + hearing are excluded
3) Example - If the hearing is listed for Thursday 10th November, the document must arrive by Friday 4th November (clear days are Wed, Tues, Mon); as documents are deemed served on second day after being sent first class provided this is a business day, the notice and witness statement must be sent by Wed 2nd November latest
The general rule is that interim applications should be made on notice to the other party. What are the exceptions to this rule?
- There is exceptional urgency
- The overriding objective of the CPR would be best achieved by making an order without notice
1) Evidence must explain why notice was not given
2) If the order is made without notice, respondent should get the court order, application notice and supporting evidence ASAP after order issued and they can apply to vary or set aside the order within 7 days of service of the order upon them
How will the costs of an interim application be dealt with by the court?
Judge decides on the issue of costs at the end of any interim application
1) Generally, the loser pays the winner’s costs; order for C’s costs means D must pay C’s costs
- Would occur where C succeeds in their application for summary judgment for example
2) In an order for ‘costs in the case,’ the ultimate loser of the litigation itself will be liable for the interim application’s costs
- Could apply if the court makes a conditional order (ie D may continue to defend proceedings, but only if they file a full defence in 14 days; if they don’t, C would then get costs of interim application)
3) No order as to costs = each party bears their own costs of the interim application
- Common where no party is at fault/outcome is a ‘draw’
What is summary judgment and in what circumstances can it be given?
1) Where D files a weak defence meaning C will likely succeed at trial, C or possibly D can apply for summary judgment, which brings the matter to an early conclusion
2) Court can give summary judgment on the whole or part of the claim if:
- (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
- (b) there is no other compelling reason why the case or issue should be disposed of at a trial
- Applicant has to prove both, respondent has to disprove only one aspect to dismiss application
3) No real prospect – court considers the evidence to make a determination
4) Compelling reason – matter may proceed to trial if:
- There is a need to allow more time for the matter to be investigated
- The claim/defence is complicated or technical, so it can only be understood with full evidence at trial
- There is a need to hear from witnesses/experts
What is the procedure for applying for summary judgment?
1) Unless the court otherwise orders, a claimant cannot apply for summary judgment until the defendant has filed an acknowledgment of service or served a defence
- So, if the claimant applies for summary judgment immediately after the defendant has filed an acknowledgment of service, the defendant need not file a defence before the hearing of the summary judgment application
2) Applicant applies with Form N244 and witness statement
3) Respondent must:
- be given at least 14 days’ notice of the hearing date; and
- file and serve any written evidence at least 7 days before the hearing.
4) If the applicant wishes to rely on further evidence in reply, this must be filed and served at least 3 days before the hearing
When can a claimant and defendant apply for summary judgment?
Claimant - must wait for D to file an acknowledgment of service or defence (unless court gives permission)
Defendant - can apply for summary judgment at any time and does not need to first file an acknowledgement of service or defence
What orders can the court make after receiving a summary judgment application?
Judgment on the claim – claimant succeeds and matter proceeds to enforcement
Striking out or dismissal of claim – defendant succeeds in disposing of C’s claim and case comes to an end
Application dismissed – applicant has failed to bring case to an early end and it proceeds towards trial
Conditional order – neither side wins; parties allowed to proceed with litigation, provided they take a specified step (ie file a defence in 14 days)
- Likely where a summary judgment application is made but D raises a weak defence – case would continue to trial, but D may pay some money to court as a condition
How will the court deal with costs of a summary judgment application?
If C succeeds for specified sum, court may award costs (usually fixed)
If C succeeds for unspecified sum, winner granted costs (fixed for fast and intermediate tracks, summarily assessed on multi-track and a disposal hearing will assess damages payable by D)
If D succeeds in striking out entire claim, C pays D’s costs for whole claim (either fixed or summarily assessed)
If application dismissed, unsuccessful party pays the successful party’s costs for the summary judgment hearing
For conditional order, costs are usually in the case
What is the purpose of an interim injunction?
1) Injunctions aim to maintain the status quo until trial – prevent D from taking certain steps for example
- Breach of an interim injunction is punishable as a contempt of court
2) When deciding whether to grant an interim injunction, the court will determine whether:
- (a) there is a serious question to be tried;
- (b) damages are an adequate remedy for either side;
- (c) the balance of convenience lies in favour of granting or refusing the injunction; and
- (d) whether there are any special factors.
- May be relevant for a case of copyright infringement
What is the applicant’s ‘cross-undertaking’ in the context of interim injunctions?
If granted, applicant must undertake to pay damages that the respondent sustains by reason of the injunction, if it later transpires that the injunction ought not to have been granted
Example - If an injunction is granted in a claim of copyright infringement to stop D from trading, if later it is found D did not infringe, C may have to pay loss of D’s profits during the period between the injunction and trial
An interim injunction is usually sought with form N244 and on notice. Some injunctions can be sought without notice. One of these is a freezing injunction.
What is the aim of a freezing injunction?
They stop a party removing assets from the jurisdiction
Must be a real risk the respondent will dispose of their assets and that the applicant has a good arguable claim to be granted
Makes sense to be sought without notice, as stops alerting respondent and allowing them to remove the assets before injunction can be obtained
Application must be supported by an affidavit, which describes the relevant assets/documents/property and shows a strong case that serious harm/injustice will be suffered if order not made
Another interim injunction that can be obtained without notice is a search order.
What is the aim of a search order?
These compel the respondent to allow their premises to be searched by the applicant, where the applicant believes that R has documents or property belonging to applicant
Must be supported by an affidavit, which describes the relevant assets/documents/property and shows a strong case that serious harm/injustice will be suffered if order not made
For search orders, it must be shown material could not be obtained otherwise
What is an interim payment and when can it be sought?
1) This is an advance payment on account of any damages or debt that D may be held liable to pay
2) Allows C who has a strong case on liability to avoid the financial hardship of having to wait for a final determination
- C should try to negotiate with D to obtain a voluntary interim payment before applying to court
3) C can seek an interim payment after the time for acknowledging service has expired
When does an application notice for an interim payment need to be served and what evidence must accompany it?
1) An application notice for an interim payment must be served at least 14 days before the hearing date
2) Evidence must be provided and should set out:
- the amount requested and what it will be used for;
- the amount of the sum of money that is likely to be awarded at final judgment; and
- the reasons for believing that the grounds required by the CPR are satisfied
What will the court need to be satisfied of before granting an interim payment?
The court must be satisfied of one of the following:
(a) the defendant has admitted liability; or
(b) the claimant has obtained a judgment against the defendant for damages to be assessed or for a sum of money; or
(c) the court is satisfied that, if the case went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs).
- Burden on applicant for ground (c) is high – must prove, on the balance of probabilities, that they will succeed
- Unlikely for applicant to succeed if the case is complex or highly contested
If the applicant proves entitlement, the court has discretion if a payment should be made and for how much.
What else will they consider?
- Court cannot order a sum of more than a reasonable proportion of the likely final amount
- Court will also consider value of counterclaim and contributory negligence in determining amount
- Can be paid in instalments or a lump sum – more commonly as instalments
- Legal costs will not be considered
Can an applicant make more than one application for an interim payment?
Yes - court can order the repayment of one though
Can a party who is awarded an interim payment discontinue the claim?
They will only subsequently be able to discontinue their claim if the other party consents in writing or the court gives permission
