Interim Applications Flashcards
What is an interim application?
Interim applications are orders or directions made to the court usually between the commencement of proceedings and trial
When should an interim application be made?
In accordance with the overriding objective, the parties should take a reasonable approach to try and agree matters to avoid the need for a court application
What is the procedure for an interim application?
- Issue
- Service
- Further evidence
- Hearing
Issue: application notice
The applicant files:
- an application notice (Form N244) at court
- Court fee
- Draft order
- Supporting evidence
- Application should be made as soon as it is apparent it is necessary
Service: serving the application on the other party
The application notice, note from the court indicating the date and time of hearing, evidence and draft order must be served on the other party
- [Default] service must be as soon as reasonably practicable, and not less than 3 clear days before the application hearing
Further evidence: from the respondent
The respondent may wish to file evidence in the form of witness statement or affidavit
- This must be filed and served as soon as possible
When must both parties have served their statement of costs in relation to the application?
Filed and exchanged not less than 24 hours before the hearing
Without notice applications
This is an application which is made without serving the application notice on the respondent. This means the respondent cannot respond or appear at the hearing, as the court hears only from the applicant.
This is only permitted if:
1. There is exceptional urgency
2. Overriding objective is best furthered by doing so: the object of the order is defeated by notice (e.g., search order)
3. All parties consent
4. Court gives permission
5. Court order, rule or practice direction permits
6. Date for hearing is fixed, a party wishes to make an application at that hearing and does not have sufficient time to serve an application
What are the procedural safeguards for a without notice application?
To mitigate the unfairness:
1. Application must explain why no notice is given
2. Applicant must draw to the court’s attention arguments and evidence in support of absent respondent’s position
3. Applicant must serve the respondent as soon as possible after the hearing (serve the application notice, evidence in support and the order)
4. Court order contains a statement of the respondent’s right to apply to set aside or vary the order. An application to set aside must be made within 7 days of the order being served
How is the unfairness mitigated and what is the solicitor’s duty?
The applicant must give full and frank disclosure, serve the application and evidence after the hearing
The legal representative has a duty to draw the court’s attention to relevant cases
Summary judgment purpose
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 - the issue is no longer considered at trial
- Either party can apply for summary judgment
Grounds for summary judgment
- The claimant has no real prospect of succeeding in the claim or defendant has no real prospect of successfully defending the claim;
AND
- There is no other compelling reason why the case or issue should be disposed of by trial
What evidence is required for a summary judgment application?
- Must address the grounds
- Must identify concisely any points of law or provision in a document on which applicant relies
- Must state that application is made because the applicant believes that on evidence the respondent has no real prospect / no other compelling reason
Who can apply for summary judgment and when?
Claimant: the first opportunity the claimant can apply is after the defendant has filed a defence or acknowledgment of service
- if the claimant applies before the defendant has served a defence, the time for a defendant to file a defence is extended until after the hearing
Defendant: can apply anytime after proceedings have commenced
- If defendant applies for summary judgment, the defendant does not have to file a defence or acknowledgement of service until after the summary judgment hearing
Procedure for making a summary judgment application (application under Part 24)
- Service at least 14 days before the hearing
- Further evidence:
- respondent files at court and serves on applicant at least 7 days before hearing
- applicant files at court and serves on respondent in reply at least 3 days before hearing - Statement of costs: both parties file and exchange not less than 24 hours before the hearing
What is the purpose of an interim payment?
An interim payment is a payment on account of damages, debt or other sum (except costs) which a defendant may be held liable to pay a claimant
- An application is made by the claimant
What are the conditions to satisfy for an interim payment?
The court will only make an order where any of the following are satisfied:
- D has admitted liability to pay damages to claimant
- C has obtained judgment against the defendant for damages 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
What evidence is required for an interim payment application?
Applicant must provide evidence which deals with:
- reasons for believing the conditions are satisfied
- sum of money for which final judgment is likely to be given
- sum of money sought by interim payment
- items or matters in respect of which the interim payment is sought
- any other relevant matters
- in personal injury claims: details of special damages and past and future loss
- in claims under Fatal Accidents Act, details of the person on whose behalf the claim is made and nature of the claim
What is the procedure for an interim payment application?
- Claimant must make a request for voluntary payment from the defendant first
- If defendant does not agree, then the claimant can apply to court
The claimant cannot apply to court for an interim payment before the end of the period for the defendant filing an acknowledgement of service
How does the court assess the sum for the interim payment?
The court must not make an interim payment of more than a reasonable proportion of the likely amount of final judgment, taking into account set-off and contributory negligence
What is the timing for an interim payment application?
- Service at least 14 days before the hearing
- Respondent files and serves evidence at least 7 days before hearing
- Applicant files and serves reply at least 3 days before the hearing
- Both parties file and exchange statement of costs not less than 24 hours before the hearing
What is the purpose of an interim injunction?
It is a temporary measure taken at an early stage in the proceedings, to restrain the respondent from causing irreparable or immeasurable damage to the applicant. It is usually made in urgency and lasts until trial or further order
What are the guidelines for an interim injunction?
American Cyanamid guidelines - just and convenient
- Is there a serious question to be tried?
- Would damages be an adequate remedy for a party injured by the court’s grant or failure to grant an injunction? (Applicant / Respondent)
- Where does the balance of convenience lie?
What sort of remedy is an interim injunction?
Is is an equitable and discretionary remedy
- Not a course of action
Equitable principles apply:
- not obtained if it serves no practical purpose
- applicant must come with clean hands
- excessive delay may lead to application being refused
Discretionary:
- Advise a client that there is NO automatic right to an injunction, even if the guidelines are met
- Application must be supported by written evidence (setting out facts to justify relief)
Procedure for an interim injunction
Starting point is that the procedure is the same as other interim applications
However, as this has potentially serious consequences, there are additional procedural considerations:
- cross-undertaking in damages
- without notice safeguards
- applications before a claim is issued, if this is in the interests of justice. But applicant will be required to undertake to issue the claim after
Why does the applicant need to offer a cross-undertaking?
A court will often decide to grant an interim injunction only if the applicant offers a cross-undertaking to pay damages to the respondent for any loss sustained due to the injunction, if it is subsequently decided that the applicant should not have been granted the injunction
Interim injunction: Step 2: would damages be an adequate remedy (applicant’s perspective)
The court will generally refuse an injunction if the applicant could be adequately compensated
Damages may be inadequate if:
- respondent has no means of paying
- harm is irreparable
- harm cannot be quantified
- harm is serious and likely to continue
Interim injunction: Step 2: would damages be an adequate remedy (respondent’s perspective)
If an injunction is granted, the respondent is prevented from doing something. The court will ask if the respondent could be adequately compensated if it transpired that the injunction was wrongly granted
- If the respondent could be adequately compensated by damages, this leans in favour of an injunction being granted
Examples of other interim applications
- extending the time period for a stage in the proceedings
- applying to amend statement of case
- requiring other party to provide further information
- requesting specific disclosure of a document
- permission to rely on expert evidence
What is the purpose of security for costs?
An application made by the person in the position of the defendant, who is concerned that the claimant will be unwilling or unable to pay defendant’s costs should the claim be successfully defended
What are the grounds for security for costs?
a) Having regard to all the circumstances, it is just to make an order
AND
b) one or more of the prescribed conditions is satisfied:
- Claimant is a resident outside of the jurisdiction
- Claimant is a company and there is reason to believe it will be unable to pay defendant’s costs
- Claimant has taken steps in relation to its assets that would make enforcement of costs order against it difficult
What is the court’s discretion when choosing to award security for costs?
The court has discretion, which means that even if one of the prescribed conditions is satisfied, the court is not obliged to give security
- Advise a client that the outcome is therefore not certain
What happens if the application for security for costs is successful?
SO WHAT? Does it mean for the client
The claimant will be ordered to pay a sum of money into court or to the defendant’s solicitors so that sum can be used to meet any costs order made in the defendant’s favour
