Interim Applications Flashcards
An application can be dealt without notice, this is known as what?
If informal notice is given, what is this known as?
Or, With notice = Respondent gets paper in advance
Or, without a hearing at all in restricted circumstances
Completely without notice = Ex-Parte
Within informal notice = Ex-parte on notice
When can an application be dealt with without a hearing?
(A) if parties agree to the terms of order sought;
(B) parties agree that there should not be a hearing
(C) court does not consider a hearing would be appropriate
When can the court grant an interim remedy on an application without notice?
If it appear to the court that there are GOOD REASONS for not giving notice
When is there likely to be good reason not to give notice?
If the application is made without notice, what should be include in the evidence in support of the applicant?
Only where …
(1) giving notice would defeat the purpose of the application (because D would take steps to defeat it); or
(2) there been no time to give notice = Most common
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Reasons why notice has not bee given
What applies when an applicant makes an applicant without giving notice?
Applicant is under special duty to give full and frank disclosure
When an application is made without notice, i.e because of time limits, what should the applicant do?
What is the effect of this?
Take steps to notify the respondent INFORMALLY of the application - except is secrecy is essential
Respond will know hearing is taking place, and will be able to attend - but will not have a copy of paper in advance
What is the golden rule?
When an application is made without notice, the applicant is duty a duty to ensure full and frank disclosure
What are the two duties under golden rule?
When does this duty end?
- D to investigate the facts and fairly present evidence
- Duty to give full, fair and accurate disclosure for material information - including drawing attention to any significant factual/legal/procedural aspect of the case = full and frank disclosure
Duty is a continuing duty, but duty may end once D has been served with the injunction
If an order is made on an application without notice, what steps must the applicant take following the hearing?
When order made, copy of notice and evidence in support + the order, should be served on party against whom it was made or sought
Order MUST contain statements of the right to make an application to set aside or vary the order made
If a party has had order made against them without notice, how long do they have to apply to have the order set aside or varied?
Must make application within 7 days of the date on which the order was served on the person making the application
What happens if the applicant fails to give full and frank disclosure?
What is the exception to this rule?
Order, normally an injunction, can be overturned for material non-disclosure — even if the merits favoured order being made
Exception:
If non-disclosure was innocent mistake and the injunction/order would have been granted anyway = Court can allow the injunction to remain in force
BUT very much the exception to the rule
