W4

Question 1

What are interim applications and when can they be made?

Answer 1

Interim applications are applications made before a dispute reaches trial. They can be made at any stage before proceedings have started, including before issuing the claim. Interim applications can range from minor applications, such as an extension of time, to applications for disruptive interim remedies like interim injunctions or summary judgment.

Question 2

What is the purpose of an interim payment?

Answer 2

An interim payment is a payment on account of damages, debt, or other sums that a defendant may be held liable to pay to a claimant. It is typically requested by a claimant to assist them financially during the interim period prior to settlement or trial.

Question 3

What is the purpose of security for costs?

Answer 3

Security for costs is an application made by a defendant who is concerned that the claimant will not be willing or able to pay the defendant’s costs if the claim is successfully defended. The court can order the claimant to provide security, usually in the form of a payment into court, to ensure that funds are available to meet any costs order later made in the defendant’s favour.

Question 4

What is an interim injunction and how is it obtained?

Answer 4

An interim injunction is an order of the court requiring a party to do or refrain from doing a given act. It is usually made in circumstances of urgency and lasts until trial or further order. Obtaining an interim injunction involves meeting evidential requirements and following specific procedural safeguards.

Question 5

What is the procedure for making an interim application?

Answer 5

The procedure for making an interim application involves filing an application notice, draft order, and evidence at court. The court sets a hearing date, and the applicant serves the documents on the respondent. The respondent has an opportunity to serve evidence in response, and then the hearing takes place. There is also an alternative procedure that can be used in certain circumstances.

Question 6

When should an interim application be made and what are the obligations of the parties?

Answer 6

An interim application should be made as soon as it becomes apparent that it is necessary or desirable. Parties should take a reasonable approach to try to agree on matters to avoid the need for an application. Parties are also under an obligation to ‘bunch’ their interim applications and issue any necessary applications to ensure that outstanding matters are dealt with at a single hearing whenever possible.

Question 7

What evidence is required for an interim application and how is it provided?

Answer 7

Evidence can be given in the application notice itself, by referring to existing statements of case, or in a witness statement or affidavit. It is advisable to provide evidence to satisfy the court that the order sought should be granted. The applicant also needs to file a draft order setting out the terms they are seeking.

Question 8

Who usually serves the application notice and supporting documentation?

Answer 8

In practice, the applicant’s solicitor usually serves the application notice for certainty and to retain control.

Question 9

When must service of the application be effected?

Answer 9

Service of the application must be effected as soon as practicable after it is filed and not less than three clear days before the application is to be heard.

Question 10

When should further evidence be filed and served?

Answer 10

Further evidence should be filed and served as soon as possible, in accordance with any specific timings stated by the court.

Question 11

What should be filed and exchanged not less than 24 hours before the hearing?

Answer 11

A statement of costs in relation to the application should be filed and exchanged not less than 24 hours before the hearing.

Question 12

Under what circumstances can a matter be dealt with in the absence of a hearing?

Answer 12

A matter can be dealt with in the absence of a hearing if the parties have agreed the terms of the order, the parties agree there should be no hearing, or the court does not consider a hearing appropriate.

Question 13

What is the procedure for making an application with notice?

Answer 13

To make an application with notice, the applicant must serve the application notice on the respondent before the hearing. The respondent has the opportunity to file evidence in response and attend the hearing.

Question 14

Under what circumstances can an application be made without notice?

Answer 14

An application can be made without notice if there is exceptional urgency, if it best furthers the overriding objective, if all parties consent, if the court gives permission, if a court order, rule, or practice direction permits, or if a party does not have sufficient time to serve an application notice before a fixed hearing date.

Question 15

What procedural safeguards are in place for without notice hearings?

Answer 15

To mitigate the risks of unfairness in making an application without notice, the applicant must explain why no notice is given and draw the court’s attention to arguments and evidence in support of the absent respondent’s position. The applicant must also serve the respondent as soon as possible after the hearing, whether or not the court has granted the relief sought.

Question 16

What documents must be served on the respondent after a successful without notice hearing?

Answer 16

After a successful without notice hearing, the applicant must serve the respondent with the application notice, evidence in support, and the court order. The court order must contain a statement of the respondent’s right to make an application to set aside or vary the order.

Question 17

What is the purpose of summary judgment?

Answer 17

The purpose of summary judgment is to enable the court to dispose of claims or issues without the need for a full trial. It allows the court to deal with weak cases or issues proportionately and expeditiously.

Question 18

What are the grounds for summary judgment?

Answer 18

The grounds for summary judgment are that the claimant has no real prospect of succeeding on the claim or issue, or the defendant has no real prospect of successfully defending the claim or issue, and there is no other compelling reason why the case or issue should be disposed of at trial.

Question 19

What are the requirements for making an application for summary judgment?

Answer 19

To make an application for summary judgment, the requirements include an application notice (form N244), supporting evidence, a draft order, and payment of a fee. Additionally, service of the application notice, supporting evidence, draft order, and notice of hearing date must be done at least 14 days before the hearing.

Question 20

What is the purpose of the application notice in a summary judgment?

Answer 20

The application notice in a summary judgment must include a statement that it is an application for summary judgment under Part 24. It must also direct the respondent’s attention to the CPR, which requires the respondent to file and serve any evidence at least seven days before the summary judgment hearing. These provisions make it clear to the respondent what is at stake in the application and how the respondent can oppose it.

Question 21

What are the potential orders that can be made at a summary judgment hearing?

Answer 21

At a summary judgment hearing, potential orders include dismissal of the application if it fails, continuation of the issues to trial, or the court giving directions to take the claim forward. Another potential order is dismissal of the claim.

Question 22

What are the timelines for filing and exchanging evidence in a summary judgment application?

Answer 22

In a summary judgment application, the respondent must file and serve evidence at least seven days before the hearing, while the applicant must file and serve evidence in reply at least three days before the hearing. Both parties must also file and exchange statements of costs not less than 24 hours before the hearing.

Question 23

Why is it important for the respondent to be aware of the requirements in a summary judgment application?

Answer 23

It is important for the respondent to be aware of the requirements in a summary judgment application because it informs them of what is at stake in the application and how they can oppose it. A summary judgment application has significant potential consequences, so understanding the requirements is crucial for the respondent’s response.

Question 24

What are the possible outcomes of a summary judgment application?

Answer 24

If the defendant applies for summary judgment and succeeds, the claim is dismissed. If the claimant applies for summary judgment and succeeds, then judgment is entered for the claimant. There is also a conditional order where the judge decides that the respondent may succeed but subject to conditions ordered by the court.

Question 25

What are the steps involved in making an application for summary judgment?

Answer 25

To make an application for summary judgment, the following steps are involved: issue an application notice (form N244), provide supporting evidence, draft an order, pay the required fee, and serve the application notice and supporting evidence at least 14 days before the hearing.

Question 26

What is an interim payment and when can a claimant apply for it?

Answer 26

An interim payment is a payment on account of damages, debt, or other sum which a defendant may be held liable to pay to a claimant. A claimant can apply for an interim payment if they satisfy the court of one of the conditions specified in CPR 25.7.

Question 27

What are the conditions that need to be satisfied for the court to make an order for an interim payment?

Answer 27

The court will only make an order for an interim payment if any of the following conditions are satisfied: the defendant has admitted liability to pay damages or some other sum of money to the claimant, the claimant has obtained judgment against the defendant for damages to be assessed, or the court is satisfied that the claimant would obtain judgment for a substantial amount of money against the defendant.

Question 28

What evidence must the applicant provide when seeking an interim payment?

Answer 28

The applicant must provide evidence that includes the reasons for believing that the conditions for making an interim payment are satisfied, the likely amount of the final judgment, the sum of money sought by way of an interim payment, the items or matters in respect of which the interim payment is sought, and any other relevant matters.

Question 29

What is the purpose of security for costs and who can make an application for it?

Answer 29

Security for costs is an application made by a defendant who is concerned that the claimant will not be willing or able to pay the defendant’s costs if the claim is successfully defended. The defendant must satisfy the court that it is just to make an order and show that one or more of the prescribed conditions in the rules are satisfied. The application can also be made by a claimant against a defendant in respect of a counterclaim or by a third party against a defendant in respect of an additional claim.

Question 30

What are the prescribed conditions for security for costs?

Answer 30

The prescribed conditions for security for costs include: the claimant is resident out of the jurisdiction (but not in a State bound by the 2005 Hague Convention), the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so, the claimant has taken steps in relation to its assets that would make enforcement of a costs order against it difficult, and other grounds such as the claimant changing address to evade litigation consequences, the claimant failing to provide an address in the claim form, or the claimant acting as a nominal claimant and being unable to pay the defendant’s costs if ordered to do so.

Question 31

What does it mean for a claimant to be resident out of the jurisdiction?

Answer 31

For an individual, being resident out of the jurisdiction means not being in England and Wales. For a company, it means where the company’s central management and control is exercised, which is usually, but not necessarily, where it is incorporated.

Question 32

What is the meaning of ‘resident’ for an individual and a company in the context of security for costs?

Answer 32

For an individual, ‘resident’ means their habitual or normal residence. For a company, ‘resident’ means where the company’s central management and control is exercised, which is usually, but not necessarily, where it is incorporated.

Question 33

What conditions must the defendant satisfy to obtain a security for costs order?

Answer 33

• The claimant is resident out of the jurisdiction (but is not resident in a State bound by the 2005 Hague Convention) (CPR 25.13(2)(a))
• The claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so (CPR 25.13(2)(c))
• The claimant has taken steps in relation to its assets that would make enforcement of a costs order against it difficult (CPR 25.13(2)(g))

Question 34

What factors does the court consider when deciding whether to grant security for costs?

Answer 34

The court considers factors such as the claimant’s ability to pay, the prospects of the claim succeeding, any delay in making the application, admission of liability by the defendant, substantial open offers, and whether the claim appears genuine or has little prospects of success.

Question 35

How does the court determine the amount and type of security for costs?

Answer 35

The court has discretion in determining the amount of security, taking into account factors such as the defendant’s likely costs, the stage of the action, the possibility of settling, and other relevant factors. The court can order a payment into court, a payment to the defendant’s solicitor, a bank guarantee, or an undertaking to pay costs.

Question 36

What is the process for making a security for costs application?

Answer 36

To make a security for costs application, the defendant must issue an application notice stating the grounds for the application. The application must be supported by written evidence, usually in the form of a witness statement. The court will consider the evidence and may grant the application if it is just and convenient.

Question 37

What is the purpose of an interim injunction?

Answer 37

An interim injunction is a temporary measure taken at an early stage in the proceedings to restrain the respondent from causing irreparable or immeasurable damage to the applicant by continuing conduct or ceasing conduct that has led to the dispute.

Question 38

What are the potential consequences of breaching an injunction?

Answer 38

Breach of an injunction is potentially punishable as contempt of court, which can result in a fine and/or imprisonment.

Question 39

What is the difference between an interim injunction and a perpetual injunction?

Answer 39

An interim injunction is a temporary measure taken at an early stage in the proceedings, usually made in circumstances of urgency and lasts until trial or further order. A perpetual injunction is a final injunction made at trial that continues with no limitation of time.

Question 40

What are the types of interim injunctions?

Answer 40

The types of interim injunctions include prohibitory injunctions, mandatory injunctions, and quia timet injunctions.

Question 41

What are the American Cyanamid guidelines and how do they relate to granting an interim injunction?

Answer 41

The American Cyanamid guidelines, established in the case of American Cyanamid Co v Ethicon Ltd [1975] AC 396, provide guidelines on how the court should exercise its discretion to grant an interim injunction. These guidelines include steps such as determining if there is a serious question to be tried, assessing whether damages would be an adequate remedy, and considering the balance of convenience.

Question 42

What factors does the court consider when deciding whether to grant an interim injunction?

Answer 42

When deciding whether to grant an interim injunction, the court considers factors such as whether there is a serious question to be tried, whether damages would be an adequate remedy, and where the balance of convenience lies. Equitable principles and discretionary factors also come into play, including practical purpose, ‘clean hands’ doctrine, and excessive delay.

Question 43

What is the purpose of an undertaking in damages in relation to an interim injunction?

Answer 43

An undertaking in damages is often required when granting an interim injunction. It is an undertaking by the applicant to pay damages to the respondent for any loss sustained if it is subsequently held that the injunction should not have been granted. The cross-undertaking is made to the court and serves as a safeguard for the respondent.

Question 44

What are the procedural considerations for making an interim injunction application?

Answer 44

When making an interim injunction application, there are procedural considerations such as the need for full and frank disclosure of all relevant facts or law, the preparation of a full note of the hearing, and the possibility of applying for an interim injunction without notice in cases of exceptional urgency. Undertakings, cross-undertakings in damages, and without notice safeguards are also important procedural aspects.

Question 45

What is the difference between with notice and without notice procedures for an interim injunction application?

Answer 45

With notice procedure involves serving the application and supporting documents to the other party, allowing them to respond and attend the hearing. Without notice procedure, on the other hand, does not involve serving the application to the other party, and the court only hears from the applicant. Without notice applications are justified in cases of extreme urgency or when giving notice would defeat the purpose of the application.

Question 46

What is the purpose of an interim injunction and when can it be granted?

Answer 46

An interim injunction is an order that requires a party to do or not do something pending trial. It can be granted if there is a serious question to be tried, damages would not be an adequate remedy, and the balance of convenience favors granting the injunction. An interim injunction is an equitable and discretionary remedy, and the court considers various factors to determine whether it should be granted.

Question 47

What is the purpose of a cross-undertaking in damages in relation to an interim injunction?

Answer 47

A cross-undertaking in damages is often required when granting an interim injunction. It is an undertaking by the applicant to pay damages to the respondent for any loss sustained if it is subsequently held that the injunction should not have been granted. The cross-undertaking serves as a safeguard for the respondent and is made to the court.

Question 48

What is the purpose of full and frank disclosure in a hearing?

Answer 48

To mitigate the potential unfairness of the procedure, in the respondent’s absence, the applicant must give full and frank disclosure of matters relevant to the hearing, even if adverse to the applicant’s position.

Question 49

What happens after a court grants an order at a without notice hearing?

Answer 49

If the court grants an order at a without notice hearing, it will arrange a second hearing to decide whether the order should continue. The respondent will be able to attend and make representations at that hearing.

Question 50

What is summary judgment and what is its purpose?

Answer 50

Summary judgment enables the court to dispose of weak cases or issues without the need for a full trial. It brings the claim to an early end. The claimant can apply for summary judgment to determine that the claim has succeeded, while the defendant can apply for summary judgment to dismiss the claim.

Question 51

What grounds are required for a party to apply for summary judgment?

Answer 51

The party applying for summary judgment needs to show that the other party has no real prospect of success on the claim or issue to which the application relates. Additionally, they need to show that there is no other compelling reason why the case or issue should be disposed of at trial.

Question 52

What are some specific timings for an application for summary judgment?

Answer 52

An application for summary judgment follows broadly the same procedure as any other application, but there are specific timings that provide for more time than the default rules for applications.

Question 53

What needs to be served on the respondent in terms of an application for summary judgment?

Answer 53

The application notice and supporting documents must be served on the respondent at least 14 days before the hearing.

Question 54

What factors might prevent a court from granting summary judgment?

Answer 54

There may be other compelling reasons why the case or issue should be disposed of at trial, such as the respondent needing further time to investigate the matter, difficult questions of fact or law, or the claim being highly complex.

Question 55

What are the special timings for an application for interim injunction?

Answer 55

An application notice and supporting documents for an interim injunction must be served on the respondent at least 14 days before the hearing. If the respondent wishes to file any evidence in reply, it must be filed and served seven days before the hearing. If the applicant wishes to file and serve further evidence in reply, it must be filed and served at least three days before the hearing.

Question 56

Can an application for an interim injunction be made before a claim is issued?

Answer 56

Yes, an application for an interim injunction can be made before a claim is issued if it is in the interest of justice. However, the applicant will be required to undertake to issue a claim form immediately.