Syllabus Area 15 - Interim Applications Flashcards
When can an interim application be made?
At any time in proceedings - can be before issuing the claim.
Which rules apply to interim application?
Generally, there are general rules but there are additional rules for particular types of interim applications.
What types of applications are included?
Extension of time, summary judgment, interim payments, injunctions, security of costs, amendments of case.
What is the definition of application notice?
A document in which an applicant states his intention to seek a court order.
What is the definition of hearing?
Hearing means any interim or final decision may be made by a judge via phone/video/person.
What is a respondent?
Means a person against the order is sought.
Where should an application be made?
Must be made to court or county court hearing centre - wherever the claim has started.
Where should an application be made if a claim has been transferred?
To the new court.
Where should an application be made if there is a fixed trial date?
Must be made to where the trial is to take place.
Where should an application be made if a claim has not been started?
If application is made before a claim has started, it mus be made to the court where it is likely to be started.
Where should application be made if the claim has finished?
Made to where the judgement was heard.
What will a district judge do in terms of deciding where an application should be made?
The distinct judge may either consider the application without hearing or direct application to be transferred to the County Court Hearing Centre.
What should parties consider before making an application to court?
Parties should take a reasonable approach to try agree matters to avoid for the need for an application to court.
What is the test for timing of an interim application?
It should be necessary and desirable to do so.
When an application is made, what is the timing?
Application must be made within a specified time received by court and parties have complied with time limit.
Where can some applications be dealt with (stages?)
CMC or pre-trial review.
What if there are more than one application?
Parties should bunch their applications together.
What form is an application notice for an interim application?
N244
What is the procedure of an interim application?
Application files an application notice (N244) stating what order, draft order, why, evidence + SOT. Then, court fee must be paid.
What kind of evidence is needed in an application notice?
Depends on what type of application being sought.
What happens after application notice is submitted?
The court issues the application and provides notice of the hearing date/time/location.
What must happen to an application notice?
It must be filed.
What happens if an application notice cannot be filed due to insufficient timing?
If no time, they should inform other party and the court in WRITING as soon as he can and make the application orally.
Who must have an application notice?
Each party to proceedings must have a copy served on them.
When should an application notice be served on parties?
As soon as practicable.
If there is no hearing, what is the timing to serves copies on parties?
At least 3 clear days prior to hearing.
If there hearing is to be via telephone, what is the timing to serve the copies?
At least 5 clear days prior.
What can parties do if there is insufficient timing to serve a copy of application notice?
Informally give notice UNLESS matters need to be kept confidential.
What needs to be done if party wants to rely on evidence?
If the evidence is not contained within the application, it should be served alongside the application.
What should evidence be?
Filed and served on all parties ASAP - statement of truth as well.
Can a party make a without notice application/what circumstances?
Yes, this will only be if there is exceptional urgent, overriding objective best furthered this way, consent of all parties, where address cannot be provided to party, given notice by oral application or with permission from court.
If a party makes a without notice application, what must be done?
State why no notice has been given.
What happens if there is an urgent application?
It will be heard by telephone.
What if claim form has been issued but there is an urgent application?
Needs to have an application notice, evidence, draft order - 2 HOURS BEFORE HEARING.
What if claim form has NOT been issued but there is an urgent application?
Must issue a claim form immediately with an injunction.
What if there is an urgent application but no hearing available?
Can ring up the Royal Courts of Justice for an emergency application at High Court.
hat should happen AFTER an without notice hearing?
A copy of application notice + any evidence must be served with court and any party who order is made against.
What must also be included AFTER a without hearing?
Must include a statement of right to make an application to set aside or vary application.
What is the time limit to set aside or vary an application?
7 days within date order was served.
What is a party fails to attend a hearing?
If fails to attend, court can either proceed in their absence or relist application.
If an application is totally without merit, what should be done?
Court must record this and make a civil restraint order if necessary.
When can applications be decided without a hearing?
Court may deal without hearing if: 1) all parties agree to terms of order, 2) parties agree that court should dispose of application without hearing, 3) court considers that a hearing is inappropriate.
If the application is approved to be dealt with without a hearing, what happens?
Applicant will inform parties of their decision and court may give directions for filing evidence.
If the application is NOT approved to be dealt with without a hearing, what happens?
The court will provide a time, date and place for hearing.
Where can a hearing take place?
Online, person or hybrid.
Who makes arrangements for hearing to take place?
Court to communicate arrangements to all parties including lawyers and all must comply.
When must a hearing be conducted remotely?
If less than 2 hours long.
What must an order for an injunction include?
An undertaking by the applicant to the court to pay damages which the respondent sustains and the court considers appropriate.
What must the undertaking include when making a without notice injunction order?
Yes, but undertaking must be made to serve on respondent the application notice, evidence, order and return date for further hearing.
What is an interim injunction?
Something the respondent must or must not do.
What is the purpose of an injunction?
Something parties are bound by.
What kind of interim remedies can be made?
Interim injunction, declaration, order for detention/custody/preservation of property, order to authorise access, delivery order, freezing injunction, search order, interim payment.
When can a court order an interim remedy in terms of whether a claim has been succeeded?
Can order whether or not there has been a claim for a final remedy.
What is the timing of ordering an interim remedy?
An order for an interim remedy can be made at any time including before proceedings and after judgement.
If an interim remedy is made before proceedings, what is the test?
Only if desirable and urgent to do so in the interests of justice.
In terms of when can an interim remedy be applied for, when can one be applied before?
After D filing AOS/Defence.
What does the court do if an interim remedy is made before proceedings?
Gives directions requiring a claim to be commenced.
How do you apply for an interim remedy?
Application notice + draft order + evidence + SOT (if without notice, state why).
Can an interim remedy be made without notice?
Yes, if there is a good reason for not giving notice.
When is no notice allowed for in an interim remedy?
If it defeats the purpose of the interim remedy or there has been no time to give notice to prevent wrongful act.
What evidence is needed for an interim remedy?
Evidence will be required but parties may rely on matters set out in SOC or application as long as verified by SOT.
Can interim remedy applications be made without notice?
Yes, if there is sufficient reasoning and informal notice at least given.
What is the least informal notice?
Via mobile phone.
What is the courts discretion regarding without notice interim remedies?
Court should not entertain applications unless sufficiently clear that it would enable the respondent to prevent remedy.
Can interim remedies be ordered in private?
Generally remedies should be public unless it defeats object of hearing, unjust for respondent for it to be in public or hearing involving confidential information.
What does the court have power in terms of private interim remedy hearings?
Court has inherent power to protect sensitive information.
What should be weighed up whether considering private hearings for interim remedy?
Scuritinise balance between right to public hearing and other countervailing factors.
What should applicants provide respondents with where an application is made without notice?
Full and frank disclosure of all material including adverse ones/anything which may prevent the order.
When is the duty of disclosure discharged?
If respondent is present at hearing and legally represented. It is only if respondent is absent and it is to ensure fairness/stop erroneous decisions.
When does the duty continue until?
Until the order is granted requiring the applicant to notify the court of any significant new facts that arise.
What if the applicant does not notify the court of any significant new facts?
Discharge the order.
What happens if there is a failure to make full disclosure?
Court can set aside the order or refuse to renew the order.
What are the applicant’s disclosure duties on short notice?
Applications must generally be served 3 days before the hearing but shorter notice can be granted.
When can an interim order be set aside?
Where there has been misconduct by the Applicant.
What will the court consider in terms of setting aside an interim order?
The court will consider the immediate link between the misconduct and the equity sued for.
What does the court need to look at to decide to set aside an interim order?
May need to look at without prejudice communications.
Who bears the costs if an interim order is set aside?
Court may make the defaulting party bear its own costs and pay the respondents costs.
What happens if the duty of full and frank disclosure is not observed?
Court can discharge the injunction after a full inquiry to whether an order was just and would have been made even if disclosure has been complied with.
What must the court consider when there is a consequence of a breach of not observing full and frank disclosure?
The court must consider the gravity of the breach. Excuse for the breach, severity of duration of prejudice to Respondent, if the consequence of the breach is remediable and the overriding objective.
What happens if there is a SERIOUS breach of full and frank disclosure?
Courts are likely to set aside an order and not renew it.
Is discharging an injunction for non-disclosure automatic?
No, but it is rare if it is not automatic.
When does the court deal with the failure to full and frank disclosure?
At the trial period rather than turning into a mini trial.
What has been a concern of raising a failure of full and frank disclosure?
Judges have been warned against minor errors as a strategy to prolong limitation abusing the process.
When is it inappropriate to decide a set aside of a failure of full and frank disclosure?
It is inappropriate to set aside where proof depends on the facts which are an issue in action unless it is plainly obvious.
What does the court consider when there has been a discharge of an injunction and applicant is wanting a regrant of an injunction?
If previously led to injunction being set aside, court will likely re consider whether a fresh injunction should be granted.
What test does the court apply to reconsider regranting a injunction?
Court is to perform a balancing act. Where a fresh injunction protects the rights of the Applicant then regranted but if there was a substantial breach last time, it may deprive the party of any advantage.
