TB - Interim Applications

Question 1

what is an interim application

Answer 1

an interim application is made to the court by one of the parties to litigation after a claim has been commenced but before it has reached trial

this is why they’re called interim - made during the intervening time between commencement and trial)

Question 2

interim applications can only be made if the defendant has prior notice of the hearing and is able to defend themselves - true or false

Answer 2

false - certain applications can be made without notice which means the respondent doesn’t know about them until the court has made a decision on the application

Question 3

what is the purpose of applying for an order for summary judgement

Answer 3

it allows a party who’s on the receiving end of a weak claim or defence to request the court to order that either part of or the whole of the the relevant statement of case be disposed of

Question 4

what are the guidelines that the court considers when deciding whether to grant an application for an interim injunction

Answer 4

whether there’s a serious issue to be tried, whether damages are an adequate remedy, where the balance of convenience lies and whether there are any other special factors

Question 5

if the applicant requests it, the court will always allow an application to be considered without notice - true or false

Answer 5

false - the court will only hear an application without notice in exceptional circumstances

Question 6

what is an applicant requesting in an interim application

Answer 6

the applicant is requesting that the court either makes an order or issues directions

Question 7

who is the respondent in an interim application

Answer 7

the party against whom the application is made

Question 8

NOTE

Answer 8

the sqe spec requires you to know procedure for making interim applications, as well as purpose, procedure and evidence required to make specific applications, such as for summary judgement, interim payments and interim injunctions

Question 9

key term - applicant

Answer 9

the party who makes an interim application during litigation proceedings

Question 10

key term - respondent

Answer 10

the party against whom the interim application is made

Question 11

in order to make an interim application, what documents must the applicant prepare and file with the court

Answer 11

• application form (N244)
• draft order
• evidence
• skeleton argument only if the claim is in the high court

Question 12

what does an application for N244 request the court to do

Answer 12

it requests the court to make an order or direction and specifies what type of order or direction the applicant would like the court to make

Question 13

what is a draft order

Answer 13

a draft of the order the applicant would like the court to make

Question 14

the applicant is required to give evidence to the court - what is this evidence generally in the form of

Answer 14

in the form of a witness statement

this should include all details of why the order or direction is being requested and should include evidence to support the facts that are being relied upon

Question 15

what is a skeleton argument

Answer 15

a written doc provided to the court in advance of a hearing which summarises the factual and legal issues involved, the arguments that are being submitted in relation to those issues, and any legal authorities that the party will be relying on

Question 16

what happens once the applicant has filed the relevant documents depends on…

Answer 16

whether the application has been made with notice or without notice

Question 17

most interim applications are made with notice - true or false

Answer 17

true

Question 18

what are with notice applications

Answer 18

applications where the applicant gives notice of the hearing to the respondent prior to the relevant court hearing

Question 19

what are without notice applications

Answer 19

applications where the applicant doesn’t inform the respondent about the application or hearing until the court has already made an order

Question 20

once the applicant has filed the relevant docs with the court, what will the court issue

Answer 20

the court will issue the application and send out a notice to the parties informing them of the time and date of the hearing

Question 21

what happens once the court has issued the application and sent a notice to the parties informing them of the time and date of hearing

Answer 21

• the application notice, draft order and evidence (including witness statement) must then be serves on the respondent at least three days before the hearing date
• the respondent must then serve any evidence they wish to rely on asap. no set timescale for respondent to do this unless court specifies
• applicant is then permitted to serve any evidence in response to the respondents evidence if they wish to do so

Question 22

what happens once all the steps above have been completed (applicant is permitted to serve any evidence in response to respondents evidence if they wish to do so) - the matter will proceed to a hearing where the court will decide …

Answer 22

the matter will then proceed to a hearing, where the court will decide whether to grant the application and make the order or direction being sought by the applicant or to reject the application

Question 23

without notice applications are only allowed in exceptional circumstances where urgency requires it - true or false

Answer 23

true

Question 24

what are the most common without notice interim applications

Answer 24

freezing injunctions

Question 25

the most common without notice interim applications are freezing injunctions where an applicant has genuine grounds to believe..

Answer 25

that a respondent will deliberately dispose of their assets to avoid paying a debt

Question 26

in such cases (without notice applications - freezing injunctions) - why would giving the respondent notice defeat the point of the application

Answer 26

because it would allow the respondent time to dispose of their assets before the hearing

Question 27

in a without notice application, the applicant must not only explain to the court in great detail, and with evidence why notice wasn't given - what else must they provide the court with

Answer 27

a witness statement setting out all of the facts whether they're favourable to the application or not

Question 28

the court will scrutinise the info and evidence they receive carefully before making an order - true or false

Answer 28

true because the respondent doesn't have the opportunity to put forward their own arguments

Question 29

if the court grants the interim application and makes an order - what must the applicant serve on the respondent

Answer 29

the applicant must serve on the respondent the application notice, evidence, court order and a brief statement explaining the respondents right to have the order set aside within seven days of it being granted

Question 30

the court may set a date for the matter to return to court for a full hearing with both parties, ordering that the injunction remains in place until the date of the next hearing - true or false

Answer 30

true

Question 31

who can make an application for summary judgement and what effect does this have if successful

Answer 31

it can be made by either party and if successful has the effect of concluding a part of or an entire case before trial

Question 32

purpose of summary judgement - summary judgement under part 24 of the CPR allows a party who is on the receiving end of a weak claim or defence to request the court to order that ...

Answer 32

either part of or the whole of the relevant statement of case be disposed of

Question 33

if an application for summary judgement is successful, will the party against whom the order is made be allowed to continue with the part of their claim or defence that the order for summary judgement relates to

Answer 33

no they will not be allowed to continue

Question 34

PRACTICE EXAMPLE

Question 35

which grounds does CPR 24.2 set out

Answer 35

the grounds that the applicant for summary judgement must meet to exceed

Question 36

ground - the respondent has no real prospect of succeeding with the claim or defence - is this a high standard of meet

Answer 36

yes no real prospect essentially means that the respondents prospect of success must be close to imaginary even if it's unlikely that the respondent will be successful, this will be enough for the court to refuse an application for summary judgement and allow the proceedings to continue

Question 37

ground - there must be no other compelling reason why the claim should proceed to trial - what can compelling reasons include

Answer 37

- complex facts (court will not allow summary judgement where the facts of the claim are overly complex or technical and require a full hearing) - the defendant requires more time to investigate the claim made - expert or further witness evidence is required to make a proper determination on the claim

Question 38

EXAM WARNING

Answer 38

to be successful in an application for summary judgement, the applicant must meet both of the criteria above (respondent has no real prospect of successing with the claim or defence and there must be no other compelling reason why the claim should proceed to trial)

Question 39

will meeting only one of the criteria of the grounds that must be met for summary judgement to succeed, be sufficient for the court to make an order in the applicants favour

Answer 39

no both criteria must be met

Question 40

what is the first step in the procedure for an application for summary judgement

Answer 40

the applicant prepares and files an application notice (form N244) requesting an order for summary judgement to be made with an accompanying witness statement explaining why they believe the two stage test laid out in part 24 is met

Question 41

what is the next step for an application of summary judgement after the applicant has prepared and filed an application notice

Answer 41

the respondent must then be given at least 14 days notice of the hearing date and is required to serve any written evidence at leats 7 days before the hearing the applicant can then file and serve any further written evidence (usually evidence that shows the respondents position to be factually or legally incorrect) no later than three days before the hearing

Question 42

the applicant can then file and serve any further written evidence (usually evidence that shows the respondents position to be factually or legally incorrect) no later than how many days before the hearing

Answer 42

no later than three days before the hearing

Question 43

following the hearing, what are the different orders that the court can make

Answer 43

- judgement on the claim - dismissal of the claim - dismissal of the application - conditional order - costs order

Question 44

order - judgement on the claim

Answer 44

this is where the claimant has brought the application against the defendant - the court gives judgement in the claimants favour as they have met both of the part 24 criteria - the claim will therefore not proceed to trial

Question 45

order - dismissal of the claim who brings the application against who? in which party's favour does the court give the judgement? whose claim gets dismissed?

Answer 45

- defendant has brought application against claimant - court gives judgement in defendants favour - court dismisses the claimants claim

Question 46

order - conditional order

Answer 46

the court orders that the claim can continue but subject to a particular condition being met for example - where the claimant has brought an application on the basis that the defendants defence has no real prospect of success and there's no other compelling reason why the claim should proceed to trial, the defendant may have persuaded the court that the prospects of their success could be more than imaginary at hearing. if this is the case, the court will order that the claim can continue but conditional on the defendant filing a proper defence setting out their legal and factual position within 14 days of the date of the hearing

Question 47

court order - costs order - what are the four different types of costs oder that can be made by the court

Answer 47

1) one party pays the other party's costs of the application 2) that costs be in the case 3) no order as to costs 4) wasted costs order

Question 48

one party pays the other partys costs of the application

Answer 48

this will usually be the losing party being ordered to pay the successful party's costs

Question 49

that costs be in the case

Answer 49

this means the decision on costs is deferred until a later date

Question 50

no order as to costs

Answer 50

this means each party will pay their own costs of the application - generally used where the applicant was justified in bringing the application and the defendant has been able to justifiably defend it (ie there's no clear winner or where the court is equally critical of both sides)

Question 51

wasted costs order

Answer 51

this is where the legal reps have to pay the legal costs due to their own poor levels of conduct in dealing with the application

Question 52

does the court need to give the applicant permission to make an application for summary judgement

Answer 52

no unless it's being made by the claimant prior to the defendant filing an acknowledgement of service and defence

Question 53

what is an interim payment

Answer 53

an amount paid by a defendant to a claimant on account before the court has made its final decision at trial enables defendant to make a payment to the claimant earlier than trial, which is then offset against the amount the claimant is awarded

Question 54

when does an interim payment typically happen

Answer 54

where the defendant admits liability for the claim (ie in personal injury claims) and understands that they will need to pay the claimant some money but the amount of the claim is still to be determined by the court

Question 55

interim payments can be made on a voluntary basis by agreement between the claimant and defendant - true or false

Answer 55

true

Question 56

when should a claimant consider making an application for the court to order an interim payment to be made by the defendant

Answer 56

where the defendant has refused to make a voluntary interim payment

Question 57

which part of the CPR can you find the grounds for an application for an interim payment

Answer 57

part 25 of the CPR

Question 58

the claimant must prove one of the following grounds for their application to be sucessful

Answer 58

- the defendant has admitted liability to pay damages or some other sum of money to the claimant - the claimant has obtained judgement against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed - the court is satisfied that if the claim went to trial, the claimant would obtain judgement for a substantial amount of money (other than costs) against the defendant from whom they're seeking an order for an interim payment

Question 59

exam warning

Answer 59

this ground is v difficult to prove - the court is satisfied that if the claim went to trial, the claimant would obtain judgement for a substantial amount of money (other than costs) against the defendant from whom they're seeking an order for an interim payment if an exam q arises where asked about the likelihood of an application for an interim payment succeeding where the claimant is applying based on this ground, it's unlikely that the claimant will be successful, unless they have a significant amount of evidence to show they will win the case and that the damages they will be awarded will be substantial

Question 60

what is the first step in the procedure for making an application for an interim payment

Answer 60

the applicant prepares and files an application notice (form N244) requesting an order for an interim payment to be made with an accompanying witness statement explaining why they believe the grounds laid out in part 25 are met

Question 61

what is the next step of making an application for interim payment after the applicant has prepares and filed an application notice requesting an order for payment to be made - how many days notice must the respondent be given

Answer 61

the respondent must then be given at least 14 days notice of the hearing date and is required to serve any written evidence at least seven days before the hearing

Question 62

what is the next step of making an application for interim payment after the respondent has been given 14 days notice of the hearing date and served any written evidence

Answer 62

the applicant can then file and serve any further written evidence (this is usually evidence that shows the respondents position to be factually or legally incorrect no later than three days before the hearing

Question 63

once the court has heard the application what will they decide

Answer 63

whether to order that the defendant makes an interim payment to the claimant and if so how much - the court will also make one of the costs orders mentioned above

Question 64

what is an interim injunction

Answer 64

an order that requires a party to either do something specific or refrain from doing something specific pending a full trial taking place (sqe requires you to know the guidelines that are applied by the court when deciding whether to grant an interim injunction generally)

Question 65

what are the guidelines applied by the court when deciding to grant an application for an interim injunction

Answer 65

- is there a serious issue to be tried - would damages be an adequate remedy - where does the balance of convenience lie - are there any other special factors

Question 66

guideline applied by the court when deciding to grant an application for an interim injunction - is there a serious issue to be tried - what does the claimant need to satisfy the court with

Answer 66

the claimant needs to satisfy the court that the claim isn't imaginary, frivolous or vexatious (ie where the action is being brought only to harass the defendant and doesn't have a legal or factual basis to it)

Question 67

guideline applied by the court when deciding to grant an application for an interim injunction - would damages be an adequate remedy - what does the court need to consider

Answer 67

the court needs to consider whether damages alone would be a sufficient remedy for the claimant and if awarded whether the respondent would be able to pay those damages

Question 68

guideline applied by the court when deciding to grant an application for an interim injunction - where does the balance of convenience lie - what must the court consider

Answer 68

the court must consider which party would suffer the biggest inconvenience - the claimant if the injunction wasn't granted or the defendant if the injunction was granted

Question 69

guideline applied by the court when deciding to grant an application for an interim injunction - are there any other special factors

Answer 69

the court looks at whether the facts of the case point to any particular factors that would either support granting an application for an injunction or refusing one

Question 70

what is the procedure for making an application for an interim injunction dependent on

Answer 70

whether it's made with notice or without notice

Question 71

once the court has heard the application, they will decide whether to order that an interim injunction is put in place, if the application is on notice and the court awards the injunction - when will the injunction last till

Answer 71

the injunction will last until trial

Question 72

if the application is without notice, the court will either//

Answer 72

- grant the injunction temporarily but list the matter for a full hearing with both parties present - this allows D the opportunity to argue that the injunction should be set aside - grant the injunction but inform D they can make an application to set aside the order within seven days of the order being made

Question 73

once the court has heard the application, they will decide whether to order that an interim injunction is put in place - they will also make one of the following costs orders ..

Answer 73

- judgment on the claim - dismissal of the claim - dismissal of the application - conditional order - costs order

Question 74

what are the two types of interim injunctions

Answer 74

- freezing injunction - search order

Question 75

what is a freezing injunction

Answer 75

an order that prevents the respondent of the application from disposing of their assets before trial - a respondent would usually do this if they were trying to protect their wealth and assets from being paid or transferred to the applicant in the event of a successful claim the applicant must show that there's a real risk of the defendant dissipating their assets

Question 76

what is a search order

Answer 76

an order that allows an applicant to enter the premises of the respondent to search for and take copies of evidence required for a court case