Interim Applications (Syllabus 15)

Question 1

What is the meaning of application notice?

Answer 1

a document in which the applicant states his intention to seek a court order

Question 2

What is the meaning of respondent?

Answer 2

the person against whom the order is sought; and such other person as the court may direct

Question 3

Where can an application be made?

Answer 3

the general rule is that an application must be made to the court or County Court hearing centre where the claim was started

Question 4

If the parties have a fixed trial date and one party wants to apply for an interim application, where should they apply?

Answer 4

to the court where the trial is to take place.

Question 5

Where an interim application must be made by a certain time, when is it treated as being made ?

Answer 5

if the application notice is received by the court within that time.

Question 6

What must an interim application notice include?

Answer 6

the application notice must state-

(1) what order the applicant is seeking; and
(2) briefly, why the applicant is seeking that order.

Question 7

What is the general rule about application notices for interim applications?

Answer 7

that an application notice must be filed

Question 8

When can an applicant make an application without filing an application notice?

Answer 8

if-

(1) this is permitted by a rule or PD; or
(2) the court dispenses with the requirement for an application notice

Question 9

Who must the application notice be served on?

Answer 9

each respondent

Question 10

When must a copy of an application notice be served?

Answer 10

as son as practicable;e after it is filed and unless a PD suggests otherwise, at least 3 days before the court is to deal with the application.

Question 11

What must accompany a copy of the application notice when it is served?

Answer 11

a copy of any written evidence in support and a copy of any draft order which the applicant has attached to his application

Question 12

When might the court deal with an interim application without a hearing?

Answer 12

if-

(1) the parties agree as to the terms of the order sought
(2) the parties agree that the court should dispose of the application without a hearing; or
(3) the court does not consider that a hearing would be appropriate.

Question 13

Where the court has made an order granting or dismissing an interim application, what must be done?

Answer 13

a copy of the application notice and evidence in support must, unless the court orders otherwise, be served with the order on any party or other person-
(1) against whom the order was made and against whom the order was sought.

Question 14

Can a person apply to have an interim order set aside?

Answer 14

Yes if they were not served with a copy of the application notice before an order was made.

Question 15

When must a party apply to have an interim order set aside or varied?

Answer 15

within 7 days after the date on which the order was served on the person making the application.

Question 16

If a party fails to attend the hearing of an application for an interim order what can the court do?

Answer 16

proceed in that party’s absence

Question 17

If a party fails to attend a hearing for an interim order and the court makes an order what can happen?

Answer 17

the court may on application or of its own initiative, re-list the application.

Question 18

What can the court do if it dismisses an application for an interim order, deeming it to be completely without merit?

Answer 18

the court’s order must record that fact and the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 19

What must an application notice be?

Answer 19

signed and include:

(1) the title of the claim
(2) the reference number of the claim
(3) the all name of the applicant
(4) the address for service.
(5) a request for a hearing or a request that the application be dealt with without a hearing

Question 20

When should an application be made?

Answer 20

as soon as it becomes apparent that it is necessary or desirable to make it

Question 21

When may an application be made without serving an application notice?

Answer 21

only-

(1) where there is exceptional urgency
(2) where the overriding objective is best furthered by doing so
(3) by consent of all parties
(4) with the permission of the court
(5) where a court order, PD or rule permits it

Question 22

When must the application notice be served if there is to be a hearing?

Answer 22

as soon as is practicable after it has been issued and at least 3 days before the hearing date. If the hearing is to take place over the telephone at least 5 days before the date of the hearing.

Question 23

What hearing swill be conducted by telephone (unless the court orders otherwise)?

Answer 23

(1) allocation hearings
(2) listing hearings
(3) interim applications, case management conferences and pre-trial review with a time estimate of no more than 1 hour.

Question 24

When should a request for a direction that a hearing should not be conducted by telephone be made?

Answer 24

at least 7 days before the hearing or such shorter time as the court may permit and must be made by letter.

Question 25

How will the court determine a request for a direction that a hearing should not be conducted by telephone?

Answer 25

the court shall determine the request without requiring the attendance of the parties.

Question 26

What interim remedies can the court grant?

Answer 26

(1) interim injunctions (2) interim declarations (3) an order relating to property. (4) an order allowing a person to enter property ETC

Question 27

When should an order for an interim remedy be made?

Answer 27

it can be made at any time including- (a) before proceedings are started; and (b) after judgment has been given.

Question 28

When may a court grant an interim remedy before a claims been made?

Answer 28

usually only if- (a) the matter is urgent; or (b) it is otherwise desirable to do so in the interests of justice and unless the court orders otherwise, a defendant may not apply for any of the orders before he has filed either an AoS or a defence.

Question 29

How can a party apply for an interim remedy?

Answer 29

(1) the court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice. (2) an application for an interim remedy must be supported by evidence (3) if the application is made without giving notice reasons must be provided in the application as to why notice has not be given.

Question 30

Where no notice is being given, what should the applicant still do?

Answer 30

take steps to notify the respondent informally of the application.

Question 31

What is the general rule of evidence for an application for an interim remedy?

Answer 31

that it should be by witness statement rather than affidavit, unless the court requires otherwise. Parties can also rely on the matters set out in- (a) their statement of case, or (b) their application, provided that the statement of case or application is verified by a statement of truth.

Question 32

When will a hearing on an application for interim remedy be in private?

Answer 32

they are usually heard in public, unless there are exceptional circumstances where publicity would defeat the object of the hearing, that a hearing is on application without notice and it would be unjust to any respondent for their to be a public hearing etc.

Question 33

To grant an interim injunction without notice is what?

Answer 33

an exceptional remedy

Question 34

What is the duty of the applicant for disclosure where an application made without notice?

Answer 34

to make full and frank disclosure of all matters relevant to the application- all matters of fact or law which are or may be adverse to the applicant.

Question 35

What is the golden rule on an application made without notice?

Answer 35

that the party who makes the application must identify any material facts and particular any which may constitute a defence or some ground for not granting the order sought.

Question 36

What might the court do in an injunction case where the duty of full and fair disclosure is not observed?

Answer 36

they may discharge the injunction.

Question 37

Who is the obligation of full disclosure owed to?

Answer 37

to the court itself, which exists in order to secure the integrity of the court's process and to protect the interests of those potentially affected by whatever order the court makes.

Question 38

What will the court consider when deciding what the consequences of any breach of duty is?

Answer 38

the court will take into account all the circumstances, including the gravity of the breach, the excuse or explanation offered and the severity and duration of the prejudice occasioned to the defendant.

Question 39

What happens where an injunction has been discharged due to a failure to comply with duty of disclosure when the injunction was granted without notice and the applicant wants a new injunction to be granted?

Answer 39

the judge has a balancing task to perform. They will however, grant the injunction if the injustice of not granting it outweighs the injustice of granting it, but may impose cost sanctions.

Question 40

What are the two categories of urgent applications/applications without notice?

Answer 40

(1) applications where a claim form has already been issued, and (2) applications where a claim form has not yet been issued In both cases, notice has not been given to the respondent.

Question 41

How will urgent applications normally be dealt with?

Answer 41

at a court hearing, but if the case is one of extreme urgency, dealt with by telephone.

Question 42

What happens with applications dealt with at a court hearing after the issue of a claim form?

Answer 42

(1) the application notice, evidence in support and a draft order should be filed with the court two hours before the hearing wherever possible (2) if an application is made before the application notice has been issued, a draft order should be provided at the hearing, and the application notice and evidence in support must be filed with the court on the same or next working day or as ordered by the court; and (3) except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application.

Question 43

What happens with applications made before the issue of a claim form?

Answer 43

(1) unless the court orders otherwise, either the applicant must undertake to the court to issue a claim form immediately or the court will give directions for the commencement of the claim. (2) where possible the claim form should be served with the order for the injunction (3) an order made before the issue of a claim form should state in the title after the names of the applicant and respondent "Claimant and Defendant in an Intended Action"

Question 44

What must an order for injunction contain?

Answer 44

(1) an undertaking by the applicant to the court to pay any damages which the respondent sustains (2) if made without notice, an undertaking bu the application,ciant to the court to serve on the respondent the application notice and evidence made as soon as practicable. (3) if made without notice to any other party, a return date for a further hearing at which the other party can be present (4) if made before filing the application notice, an undertaking to file and pay the appropriate fee on the same or next working day; and (5) if made before the issue of a claim form- (a) an undertaking to pay and issue the appropriate fee; or (b) directions for the commencement of the claim.