Interim applications

Question 1

What is an interim application?

Answer 1

Applications you can make to the court up until trial that require a judicial decision. All interim applications must be justified within the terms of the overriding objective.

Question 2

When can an interim application be made?

Answer 2

Any time between issue and trial/settlement. Make applications like this as soon as possible as will have to wait a while.

Question 3

Who are the applications heard by?

Answer 3

District judges in the county court and masters in the high court.

Question 4

How is an interim application made?

Answer 4

Issue an application notice-N244. Need to provide a case summary as sometimes the files are quite thick and judges aren’t given a lot of reading time. Urgent applications can be listed on short notice. Sometimes have to attach a draft order if it is a complicated case.

Question 5

What must the judge consider when making any decision?

Answer 5

The overriding objective.

Question 6

What will the procedure tell you?

Answer 6

What notice you have to give to the other side and what evidence you. have to file.

Question 7

What is the notice period?

Answer 7

For most common applications, the notice period is 3 days or if it is a telephone hearing, it is 5 days notice.

Question 8

Timing

Answer 8

Court expects the applicant to give an assessment of the likely time that the hearing of an application will take. Where the application is to be on notice, the court also expects the parties to cooperate in agreeing a time estimate for the hearing; included in the application notice.

Question 9

Is there payment required for an interim application?

Answer 9

Have to pay a fee unless the party is exempt on basis of financial hardship. The sooner you serve your costs schedule the better. Interim payments can take longer if opposed.

Question 10

Extension

Answer 10

Can ask the other side to agree to an extension of up to 38 days e.g. more time to obtain witness statements etc.

Question 11

What are the applications for specific remedies?

Answer 11

Setting aside default judgement

Summary judgement

Interim payments

Question 12

General rules

Answer 12

CPR 23:

One of the general rules is that interim applications can be dealt with by telephone hearings. Can be hearings for up to an hour. If its anything with a lot of documentation which requires a lot of argument, it is better in person.

Question 13

Application with notice vs. without notice

Answer 13

With notice; served on respondent so he can respond and object.

without notice; no service of the application on the respondent. The respondent has 7 days from service to set aside/vary order.

Question 14

What is the basic principle of litigation?

Answer 14

An order should not be made against a party without him having had an opportunity to put his case. Exceptions;

1. Giving notice would defeat the purpose of the application
2. Exceptional urgency

Question 15

Setting aside default judgements

Answer 15

CPR 13
If D fails to file acknowledgement of service or file a defence in the time limit, can apply to court to enter judgement in default of a defence; administrative rather than judicial act.

Question 16

Who makes the decision on default judgements?

Answer 16

Clerk. not the judge and the clerk is simply looking at the court file.

Question 17

Article 6 ECHR

Answer 17

Demands potential for default judgements to be set aside. It would be mandatory to set aside the judgement if it had been:

• wrongly entered i.e. before the deadline passed
• claim already paid in full including interest and costs

Question 18

Mandatory set aside

Answer 18

Wrongly entered i.e. before deadline passed or claim already paid in full

Question 19

Discretionary set aside

Answer 19

Court has the discretion to set aside where;

• D has a real prospect of successfully defending the claim or
• D can establish some other good reason why judgement should be set aside. In practice, D always has to establish he has a defence with a real prospect of success.

Question 20

Procedure for setting aside default judgement

Answer 20

An application is made in the normal way’ form N244.

CPR 13.4; the application will be transferred automatically to D’s home court if not already issued from that court when the claim is for a specified sum and D is an individual.

Supporting evidence may be contained in part C of N244 or in a separate witness statement e.g. if X on holiday when DJ was issued, then application should be supported by evidence that she was on holiday at material times and acted promptly once aware of DJ.

Any delay should be explained.

Question 21

Submission of application for DJ

Answer 21

Must be submitted promptly and will, one nearly ever case, be ‘on notice’ with the requisite current fee.

Question 22

Possible orders for DJ

Answer 22

• Set aside Dj, plus case management directions.
• Refuse application.
• Where application is made in a case which the court must set aside, any order made for payment to the C will also be set aside.
• Discretion to set aside; dismiss or grant
• Conditional order - condition = D pays judgement into court - only if application made very late.

Question 23

Costs for setting aside default judgement

Answer 23

1) Mandatory ground - C at fault = C pays D’s costs.
2) Discretionary ground = good reason and defence = neither C or D at fault = costs in case. Defence only = D at fault = D pays C’s costs; likely to have to pay costs of application, summarily assessed as she was to blame for DJ being entered.

Question 24

Unless order

Answer 24

Non-compliance with time limits in previous orders. If you now you’re going to be late complying with a court order, should first approach the other side for 28 days extension provided it doesn’t put the hearing at risk; CPR 3.8.

Question 25

Sanction for unless order

Answer 25

Claim/defence struck out.

Question 26

3 stage test for relief from sanctions

Answer 26

1) was there a serious failure? 2) was there good reason of that failure? 3) evaluate all the circumstances of the case to enable the court to deal justly with the application.

Question 27

What is a strike out

Answer 27

CPR 3.4; A very serious application to make against the other side. where a party strikes out the other side on the ground that the statement of case discloses no reasonable grounds for bringing or defending a claim or is an abuse of the court's process or where there has been a failure to comply with a rule, PD or order. either party can apply.

Question 28

What is a summary judgement?

Answer 28

CPR 24.2; A judgement entered by court for one party and against another party summarily i.e. without full trial. May sometimes apply at the same time as an application to strike out under CPR 3.4.

Question 29

What will judges consider when deciding on a summary judgement?

Answer 29

Judges will be looking at the merits of the case. Only in real clear-cut cases will you get those judgement; if there's any dispute as to facts/law then will not get this judgement.

Question 30

Why is a summary judgement used?

Answer 30

The court may grant a summary judgement against C or D for all or part of a claim when: - C has no real prospect of succeeding on the claim or issue or; - D has no real prospect of successfully defending the claim or issue; and - In respect of either of the grounds above, there is no other compelling reason why the case should be disposed of at trial.

Question 31

When is a summary judgement used?

Answer 31

Not till after particulars of claim and acknowledgement of service or defence. summary judgements and strike outs can usually take quite a long time to hear.

Question 32

Procedure for summary judgement

Answer 32

Similar to interim payment. The application will usually be supported by written evidence and this must be served on the other party at least 14 days before the hearing. if the application is being opposed, then that written evidence must be served on the other party at least 7 days before the hearing. Any evidence in reply needs to be filed and served at least 3 days before the hearing.

Question 33

Evidence for a summary judgement application

Answer 33

Evidence will need to establish 2 grounds set down under CPR 24.2. must cover both elements; 1) no real prospects test; applicant needs to satisfy the court that the claim/defence has no real prospect of success. 2) no other compelling reason test; no other compelling reason why the matter should go to trial

Question 34

Who is the burden of proof on for a summary judgement

Answer 34

Applicant

Question 35

Possible orders for a summary judgement

Answer 35

1) Judgement on the claim and that will be the end of the claim or issue. 2) Claim is dismissed 3) Refuse the application 4) Conditional order 5) may strike out the claim/defence if it is so weak on the facts that it will not succeed.

Question 36

Costs for a summary judgement

Answer 36

Fixed costs if summary judgement is for a specified sum.

Question 37

What is an interim payment?

Answer 37

CPR 25.6-25.9: An advance payment on account of damages or debt. Should first negotiate with D for voluntary interim payment. ALWAYS discretionary - no right to an order. Trial judge is not told about interim payment until all issues of liability and quantum decide, unless D consents.

Question 38

Who can make an interim payment application?

Answer 38

Claimant can make more than 1 application.

Question 39

When can the claimant make an application for an interim payment?

Answer 39

C cannot apply until time for acknowledging service has expired. Has to be within 30 weeks.

Question 40

How is an interim payment application made?

Answer 40

Make an application on notice supported by evidence. Serve application and evidence as soon as practicable but at least 14 days before hearing date. D's evidence (if any) at least 3 days before hearing date.

Question 41

Purpose of interim payment

Answer 41

May want this for medical bills or may not have job, off sick etc. Don't need a reason to make one but can help your application.

Question 42

Evidence required for interim payment

Answer 42

Para 2.1 PD 25B - Amount of interim payment sought - Items or matters in respect of which interim payments sought - Estimate of likely amount of final judgement - Reasons for believing that conditions for interim payment are satisfied. - In PI claims, details of special damages and past and future loss

Question 43

Grounds on which order of interim payment can be made

Answer 43

CPR 25.7 - D has admitted liability - C has obtained judgement, but the sum to be paid is to be assessed - court satisfied if claim to trial, C would obtain judgement for substantial sum; Would=Will; likely=insufficient - British and Commonwealth Holdings v Quadrex Holdings. - in a claim in which there's 2 or more D's and an order is sought against 1 or more of the D's, court will be satisfied that if the action were to go to trial, C would obtain judgement for a substantial sum against at least one of the D's.

Question 44

Procedure for making an application for an interim payment

Answer 44

Before an application is made and filed at court, D should be invited by written requested, to agree to make an interim payment.

Question 45

If D wishes to rely on written evidence at hearing of interim payment

Answer 45

Must file the written evidence at court and serve C at least 7 days before the hearing. If C wishes to respond to the written representations served by D, he must filed his written representations at court and serve them on D at least 3 days before the hearing.

Question 46

Fiona Jordan and Phillippe Jordan v Dean Geason

Answer 46

Set out relevant guidelines to consider the amount for an interim payment award.

Question 47

Stringman v McArdle

Answer 47

No requirement that C show need for interim payment or that he will suffer prejudice if not received.

Question 48

Poverty in relation to interim payment

Answer 48

D cannot resist application on grounds of poverty but D dan invite court to take into account his ability to pay sum sought when deciding whether or not to exercise its discretion.

Question 49

Costs for interim payments

Answer 49

- Court must not make an award of an interim payment that is more than a reasonable proportion of the likely amount of the final judgement taking into account contributory negligence and any counter claim; CPR 25.7 - Net of social security benefits e.g. statutory sick pay - Guidance in Dean Geason; C's ability to repay (if D successful at trial) and financial position of D (i.e. ability to repay). C's need for the money/ what he intends to do with it is not relevant. - payment by instalments; CPR 25.6.7

Question 50

what is an injunction ?

Answer 50

CPR 25; | An injunction stopping you from doing something or requiring you to do something. Prohibitory or mandatory.

Question 51

When is an injunction used?

Answer 51

Can be sought at any time during proceedings. Can only be granted within an action; cannot be granted in isolation.

Question 52

What court hears injunctions?

Answer 52

All types of interim injunctions can be granted in the high court.

Question 53

Types of injunctions

Answer 53

1. To prevent someone taking certain steps; 2. to require D to take action to do something; 3. to require D to take steps to prevent harm occurring.

Question 54

Timing for injunctions

Answer 54

for very serious matters, it can be possible to obtain an injunction in as little as 48-72 hours.

Question 55

What form are injunctions made in

Answer 55

Applications can be made over the telephone and 'out of hours'.

Question 56

Enforcement of injunction

Answer 56

Once served, it is enforceable by a charge for contempt of court if D fails to comply with the terms of the order. Compliance is usually provided to be 'on service'; D must comply with the term of the injunction immediately upon service on him of the order.

Question 57

What are security for costs

Answer 57

If you don't think D has a good defence and you think they're just stalling. It offers protection to a party (usually D) from the risks of their opponent not being able to pay the party's litigation costs if ordered to do so.

Question 58

Purpose of security for costs

Answer 58

It is designed to protect a D who is facing an action, where even if he defeated the claimant's claim, the C would be unlikely to be able to pay any or all of D's costs of defending the action.

Question 59

What happens if an application for security for costs is successful?

Answer 59

The opponent (usually C) will be required to pay money into court or provide a bond against which the winning party can subsequently enforce an order for costs.

Question 60

When is security for costs used?

Answer 60

Only available for specific situations set out in statute and/or the court tules and is subject to courts discretion. An order will only be made when it is just to do so. Only available within litigation, thus not available as a pre-action protocol. Not available for small claims.

Question 61

CPR 3.1

Answer 61

Security for costs cannot be sought independently - must be sought alongside another application such as summary judgement.

Question 62

Delay in applying for security for costs

Answer 62

Can be fatal and result in no security being granted.

Question 63

When should applications for security for costs be made?

Answer 63

Applications should be made promptly. This will usually be after the acknowledgement of service of the defence has been filed. Application should be served at least 3 clear days before the hearing. No specific time limit for a response, but this should be served in good time for the hearing.

Question 64

Procedure for security for costs

Answer 64

As with most interim applications a request for security should be made first, and only when that has been refused or the terms are unacceptable, the application will follow this procedure: - Apply on notice in form N244 - written evidence will seek to substantiate the ground relied on - include the fee - parties should file and serve a costs schedule in form N260 24 hours before the hearing.