Week 4- Interim Applications

Question 1

What steps should a party take before making an interim application (23A PD 2.5)?

Answer 1

In accordance with the OO, the party who wants something should first approach the other party. If the other party doesn’t cooperate, then it is at this point that the party should apply (23A PD 2.5).

Question 2

If a party/parties wish to make multiple interim applications, what are they obligated to do?

Answer 2

Parties are under a specific obligation to ‘bunch’ their interim applications (23A PD 2.6).

If a hearing has been fixed for whatever reason, it is up to the parties to issue any necessary applications to ensure that outstanding matters get dealt with at a single hearing wherever possible.

Question 3

According to the general rules, what must be included in an interim application?

Answer 3

1) Application notice (Form N244)
2) Supporting evidence
3) Draft order
4) Fee

Question 4

According to the general rules, what documents must the applicant serve on the respondent and when?

Answer 4

Service (as soon as practicable but not less than 3 clear days before the hearing):
1) Application notice (form N244)
2) Supporting evidence
3) Draft order
4) Notice of hearing date

Extra q: What ev might be needed for security for costs application?

Question 5

According to the general rules, what are the deadlines for filing further evidence in an interim application?

Answer 5

• Respondent files at court and serves on the applicant evidence as soon as possible
• Applicant files at court and serves on the respondent evidence in reply as soon as possible
• Both parties file and exchange statements of costs not less than 24 hours before hearing.

Question 6

When is a party allowed to make an interim application ‘without notice’?

Answer 6

Permitted only if (23A PD 3):
1. There is exceptional urgency (for eg, a remedy is needed immediately); or
2. OO is best furthered by doing so; or
3. All parties consent; or
4. The court gives permission; or
5. A court order, rule or PD permits; or
6. **A date for a hearing has been fixed, a party wishes to make an application at that hearing, and the party does not have sufficient time to serve an application notice. **In this case, the party should still inform the other party and the court (if possible in writing) as soon as he can of the nature of the application and the reason for it.

I guess in practice, a lot of these grounds might have cumulative effect

Question 7

When does the respondent find out information about a without notice interim application?

Answer 7

ASAP after the hearing, applicant serves on respondent the following:
(1) The application notice
(2) The evidence in support
(3) The order (CPR 23.9).

Question 8

What are the grounds for summary judgment?

Answer 8

The grounds for summary judgment are (CPR 24.2):
a) C has no real prospect of success on the claim or issue; OR D has no real prospect of successfully defending the claim or issue.
b) There is no other compelling reason why the case or issue should be disposed of at trial.

Question 9

What does the respondent need to show to defeat applicant’s case for summary judgment?

Answer 9

That there is some chance that its case will succeed (beyond showing that its case is merely arguable)

Question 10

Who can apply for summary judgment and when?

Answer 10

C: After D has filed acknowledgement of service/defence (CPR 24.4)

[NB: Can file earlier with the court’s permission]

D: Any time after commencement of proceedings

Court: Can fix hearing of its own initiative (CPR 1.4(2)(c) and CPR 3.3).

Question 11

What happens in terms of counting time in the main proceedings once an application for summary judgment has been made?

Answer 11

Stops the clock and resumes after the hearing of the interim application

Question 12

What must be included in an application for summary judgment?

Answer 12

1) Application notice (Form N244)
2) Supporting evidence
3) Draft order
4) Fee

Question 13

In an application for summary judgment, what documents must the applicant serve on the respondent and when?

Answer 13

Service (at least 14 days before the hearing):
1) Application notice (form N244)
2) Supporting evidence
3) Draft order
4) Notice of hearing date

Question 14

In an application for summary judgment, what are the deadlines in relation to the filing of further information?

Answer 14

• Respondent files at court and serves on the applicant evidence at least 7 days before hearing
• Applicant files at court and serves on the respondent evidence in reply at least **3 days before hearing. **Means applicant will have at least 4 days to prepare reply.
• Both parties file and exchange statements of costs not less than 24 hours before hearing.**

Question 15

What are the two types of interim application where there are special rules for filing of documents?

Answer 15

Summary judgment
Interim payments

Question 16

What is the difference between an interim payment and a security for costs order?

Answer 16

An interim payment is a payment on account of damages, debt or other sum (except costs) which D may be held liable to pay to C. C may apply for this if it needs the money to carry on the claim.

A security for costs order is where the court orders C to pay money, usually into the court, as security if it is unable to pay D’s costs. D applies for this, not C, and does so where it is concerned that C will not be able to pay D’s costs. when it is concerned that C will not be able to meet any costs order later made in D’s favour.

Question 17

What is the 2-part test for applying for security for costs?

Answer 17

(1) Having regard to all the circumstances of the case, it is just to make an order (CPR 25.13(1)(a)); AND
(2) One or more of the prescribed conditions in the rules are satisfied (CPR 25.13(1)(b) and (2)).

Question 18

List the prescribed conditions, one of which must be satisfied to get security for costs order

Answer 18

(a) C is resident out of the jurisdiction in a non-HC contracting state
(b) Company impecuniosity: C is a company and there is reason to believe it will be unable to pay D’s costs if ordered to do so
(c) Dissipating assets: C has taken steps in relation to its assets that would make enforcement of a costs order against it difficult

• NB Other grounds:
• C has changed address since claim was commenced with a view to evading the consequences of the litigation (CPR 25.13(2)(d)).
• C failed to give an address in the claim form (CPR 25.13(2)(e)).
• Claimant is acting as a nominal claimant and there is reason to believe it will be unable to pay D’s costs if ordered to do so (CPR 25.13(2)(f)).

Question 19

What must D show to demonstrate that C is an impecunious company for the purposes of a security for costs application?

Answer 19

1. C is an impecunious company, not individual
2. C ‘will be unable’ (as opposed to ‘may be unable’) to pay its debts when the order is made against it **(incl likely award and likely costs) **

Question 20

Even if one of the prescribed conditions for making a security for costs orders applies, must the court grant the order?

Answer 20

No- will only grant if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order. In deciding this, the court will mainly look at whether granting the order will financially cripple C and damage its ability to continue the claim and its business.

Question 21

What factors make it less likely for the court to grant D a security for costs order against C?

Sir Lindsay Parkinson v Triplan

Answer 21

1) If D has admitted liability
2) Substantial open offers (those the court can be made aware of) will make D’s application less likely to succeed.
3) The application should be made promptly, as soon as the facts underpinning the application are known.
4) If D has itself been responsible for C’s financial difficulties, this will make the application less likely to succeed.

Question 22

What factors make it more likely that the court will grant D a security for costs order against C?

Answer 22

If C’s **claim appears not to be genuine, or which has little prospects of success, **will make D’s application more likely to succeed.

Question 23

What evidence should be submitted with an application for SFC?

Answer 23

a. Why the specific ground applies: eg for the impecunious company ground, the witness statement is likely to exhibit the accounts to show C is unable to pay.
b. The factors in the exercise of the court’s discretion
c. The likely costs to trial eg the witness statement is likely to exhibit a statement of costs or to refer to an approved costs budget
d. The amount of security requested.

Question 24

When is a SFC application appropriate?

Answer 24

Where D concerned that if it successfully defends the claim and C is ordered to pay D’s costs, C will not be willing/able to do so.

It is only D that can apply for SFC

Question 25

When would you normally apply for an interim injunction and how long does it usually last?

Answer 25

Would normally apply early on in proceedings if need other party to do/stop doing something urgently. Order for an interim injunction lasts until trial/or further order.

Question 26

Describe the 3-stage test the court will apply on an application for interim injunction (the American Cyanamid guidelines)

Answer 26

Whether it is “just and convenient” to grant an injunction (s.37 SCA 1981):

1) Step 1: Is there a **serious (i.e. not frivolous or vexatious) question **to be tried?

2) Step 2: **Would damages be an adequate remedy **for a party injured by the court’s grant of, or failure to grant, an injunction (applied to each of applicant and respondent)?

3) Step 3: Where does the balance of convenience lie? i.e who will be in a worse position after applying step 2?
If it appears that damages would be adequate for neither party, then the court will consider a very broad range of factors to try to ascertain whether granting or not granting the injunction carries the lesser risk of injustice ie to ascertain where the ‘balance of convenience’ lies.

Question 27

An injunction will not be granted (even if 3-stage test is satisfied) if: (1) it would serve no practical purpose; or (2) applicant has not come to equity with clean hands. Give egs of each of these

Answer 27

• No practical purpose: Injunction concerning shareholders’ rights- if granting injunction from exercising those rights wont make a practical difference to the decision-making at the SH meeting, then no need for injunction.
• Dirty hands:

Need eg

Question 28

What additional information must the applicant submit if it is making an interim application without notice?

Answer 28

In the ev submitted setting out the facts to justify the injunction, applicant must also state the reason why no notice is being given (CPR 25.3).

Question 29

A court will often often decide to grant an interim injunction only if the applicant offers a cross-undertaking to the court- what is this?

Answer 29

By the cross-undertaking, the applicant agrees to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction (or proceedings are discontinued).

NB The cross-undertaking is made to the court. It is there for the protection of the respondent, but the court can also require (as a condition of granting the injunction) an undertaking to be given for the protection of any other person who may suffer loss because of the order (25A PD 5.1 and 5.2).

Question 30

What is the procedure for without notice applications for interim injunctions?

Answer 30

1. First hearing without notice to respondent:
   * Applicant makes full and frank disclosure (same disclosure rules as normal)
   * Court grants injunction for limited period and fixes date for second hearing (‘return date’)
   * Applicant prepares full attendance note of hearing and serves on respondent
2. Respondent is given notice of second hearing, can attend and make representations
3. Second hearing: Court has broad discretion to vary order, uphold, discharge order, etc.

Question 31

In what circums will the court allow a party (C) to apply for an interim injunction before service of claim form?

Answer 31

If the matter is (CPR 25.2(2)(b)):
a) (Exceptionally) Urgent; or
b) It is otherwise desirable to do so in the interests of justice.

In these circumstances, the applicant (C) must undertake to the court to issue a claim form immediately after decision on interim application.