Interim Applications and Injunctions Flashcards
Where should applications generally be made?
The court or hearing centre where the claim was started.
If a claim has been transferred to another court since started, where should an application be made to?
The court it was transferred to, unless there is a good reason to make the application to a different court.
Where should an application be made if the claim has not yet been started?
The court where the claim is likely to be started, unless there is good reason otherwise.
An application made in the County Court before a claim has been started may be made at any County Court hearing centre, unless…
…any enactment, rule or practice direction provides otherwise.
If an application is made after proceedings to enforce judgment have begun, it must be made to the court or County Court hearing centre which is dealing with the enforcement of the judgment…
…unless any enactment, rule or practice direction provides otherwise.
When can an applicant make an application without filing an application notice?
Where permitted by a rule or practice direction;
Where the court dispenses with the requirement for an application notice.
Must application notices be served on each respondent?
Generally yes, unless a rule, PD or court order says otherwise.
What must an application notice include? (not the individual docs)
What order the applicant is seeking; and
Why the applicant is seeking the order.
When must an application notice be served?
As soon as practicable after it is filed; and
At least 3 days before the court is to deal with it, unless Rules or PD specify otherwise.
What should accompany the application notice during service?
Written evidence in support
Any draft order which Applicant has attached
TRUE or FALSE. Where notice is served but the period of time is shorter than required, the court must reject the application.
FALSE. The court may direct that, in the circumstances, sufficient notice has been given.
The court may deal with an application without a hearing if—
(a) the parties agree as to the terms of the order sought;
(b) the parties agree that the court should dispose of the application without a hearing, or
(c) the court does not consider that a hearing would be appropriate.
A person who was not served with a copy of the application notice before a r239 order may apply to…
How long do they have to make this application?
…have the order set aside or varied.
Must do so within 7 days after the date on which the order was served on the person making the application.
May the court proceed in the absence of either the applicant or respondent at the hearing?
Yes.
When dismissing an application for lack of merit, what must the court do?
The court order must record that fact.
The court must consider whether a civl restraint order is appropriate.
An application may be made without serving an application notice only:
Where there is exceptional urgency;
Where the overriding objective is best furthered by doing so;
By consent of all parties;
With the permission of the court;
Where paragraph 2.10 applies;
Where a court order, rule or PD permits.
Where there is to be a telephone hearing, the application notice must be served as soon as practicable after issued, and in any event at least…
…5 days before the date of the hearing.
What is an injunction?
A court order prohibiting a person from doing something or requiring a person to do something.
When can the High Court grant an injunction?
In all cases where it appears to the court to be just and convenient to do so.
TRUE or FALSE. Courts are more reluctant to grant mandatory injunctions than prohibitory injunctions.
TRUE.
What is an undertaking?
A solemn promise which a litigant volunteers to the court.
Can interim declarations, as opposed to interim injunctions, be made?
Yes.
When can an order for an interim remedy be made?
What are the exceptions?
At any time, including before proceedings have started and after judgment has been given.
Exceptions:
- where a rule, PD or enactment provides otherwise
- interim remedy can only be made before a claim if the matter is urgent or desirable in interests of justice.
- unless the court orders otherwise, D cannot apply for a r25.1 order before filing an ackowledgement of service or a defence.
Can interim hearings be in private?
Yes, but generally they should be in public.
Can a defendant be sent to prison for breach of an interlocutory injunction?
Yes.
What are three key questions to be considered, as per American Cyanamid Co?
Is there a serious question to be tried?
Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?
If not, where does the balance of convenience lie?
Should conflicts of evidence be resolve during interlocutory hearings?
No. that is for the main trial.
What is the balance of convenience about?
Weighing the potential harm against a defendant who does not get an injunction (where damages inadequate) against the harm caused against a defendant who would be wrongly prevented from performing an act which they are legally entitled to perform.
TRUE or FALSE. The great object when hearing interlocutory injunction hearings is to abstain from expressing any opinion on the merits of the case until the hearing.
TRUE.
When determining the grant of interim injunctions, what are the three additional guidelines considered in Fellowes & Son v Fisher?
- Preserve the status quo
- Relative strength of each party’s case
- other special factors
Can a court order a party to give a cross-undertaking?
No. It is something that the party themselves must be prepared to give for the grant of an injunction.
WIll a court deny an applicant an injunction on the basis that they are too poor to grant a meaningful cross-undertaking?
No. The court will not deny them something they would otherwise be entitled to purely on that basis. Finance should not affect the justice of the case.
When may a court grant an interim remedy before a claim has been made?
If the matter is urgent, or it is otherwise desirable to do so in the interests of justice.
How long before a hearing should a copy of the interim application notice be served on the respondent?
At least 3 days.
If an applicant makes an application without giving notice, must they give evidence as to why they did not give notice?
Yes.
What form is evidence in support of an interim injunction normally to take?
Witness statement, rather than affidavit.
What form is used for injunction applications?
N16A.
What should be served along with injunction application?
A copy of any written evidence;
A copy of any draft order.
What is the difference between an affidavit and a witness statement?
Affidavits are sworn usually for more serious things such as search orders or freezing orders.
Witness Statements require a statement of truth.
TRUE or FALSE. If parties have been notified of a fixed date for a trial, injunction applications must be made to the court where the trial is to take place.
TRUE. CPR 23.2(3)
If a court dismisses an interim application after deciding it is entirely without merit, what MUST they do next?
Consider making a civil restraint order. CPR 23.12
What does it mean for an application to be MADE by a particular date?
It must be received by the court by that particular date.
In what order will the court consider matters relevant to granting an interim injunction?
Is there a serious question to be tried?
Are damages adequate for applicant?
Is R able to pay?
Are damages adequate for R?
Is A able to pay?
Where does the narrow balance of convenience lie?
Status quo
Are application notices generally required when making interim injunction applications?
Yes - CPR 23.3(1)
Is permission of the court generally required when making interim injunction applications?
No - there would be too much administrative strain.
Is evidence in support of the application generally required when making interim injunction applications?
Yes - see CPR 23.7 and 23A PD9
Is a copy of a draft order generally required when making interim injunction applications?
Yes - CPR 23.7(3)(b)
Under the strict terms of CPR 23, what counts as “notice”
The N244 form which triggers the app; CPR 23.3
The period of at least 3 clear days between service of N244 form and the date of the hearing; CPR 23.7(1)(b)
Where the Applicant has too little time to give formal notice of at least three clear days, he may be allowed to proceed if…
Does informal notification to the respondent count as notice?
There is already a hearing in the list at which his application may be heard (23APD at para 2.10); or
In certain circumstances such as exceptional urgency (23APD at para 3)
No, it would not count as notice in the formal sense.
Secrecy is not a specific ground for skipping the three-day notice rule, so how is it applicable?
It is an instance of following the overriding objective which is in 23APD.3
TRUE or FALSE. In an application for an interim payment where there is no urgency in thenext 24 hours the minimum standard of evidence which the court will belikely to consider at the hearing is a witness statement.
True. There is no urgency, and an application for interim payment will require sufficient evidence to justify the conditions for payment.
TRUE or FALSE. In an application for judgement in default the minimum standard of evidencewhich the court will be likely to consider at the hearing is a witnessstatement.
False. as the evidence is very limited e.g. the Defendant has not filed an Acknowledgement of Service or Defence
True or false. In an application to set aside a judgement in default the minimum standard of evidence which the court will be likely to consider at the hearing is an affidavit.
False. would require a witness statement not an affidavit.
In an emergency, without notice application for an injunction the minimum standard of evidence which the court will be likely to consider at the hearing is a witness statement.
FALSE. (as urgent) would most likely only require an application notice, verified by a statement of truth
What will a failure to supply a witness statement for a non-urgent application likely result in?
Judge will refuse to hear the application until the witness statement was available.
Why are affidavits required for freezing injunctions, search orders or committals?
The gravity of the situation. As the statement must be sworn, it becomes an affidavit.
If a matter is urgent and there is no time to prepare written evidence, what can you fall back on?
The contents of the application notice. 23APD para 9.7
Can the court proceed in the absence of the applicant or respondent if they fail to attend the hearing, when disposing of an application?
Yes.
Can the court determine disposition of application without a hearing?
Yes
