WS4: Interim Applications

Question 1

What is an interim application?

Answer 1

An application for an order or a direction made to the court, usually in the interim period between the commencement of proceedings and a trial

Question 2

At what point in proceedings can interim applications happen?

Answer 2

Can occur at any time in the proceedings - aim is to get something or sort something pre-trial.

Question 3

When should a party make an interim application?

Answer 3

As soon as it is necessary or desirable to do so

Question 4

What specific obligations are party under regarding the organisation of interim applications?

Answer 4

To bunch them up so that several applications could be dealt with at one hearing.

Question 5

How is the process of an interim application started?

Answer 5

Applicant filing an application notice containing details or who is making the application, what order the applicant wants, why the applicant is asking, and what information the applicant relies upon.

Question 6

Should evidence always be provided? If so, how can it be given?

Answer 6

Required for some types of application, not all, but sensible to always provide some.

• In application notice itself
• Referring to existing statements of case
• Witness statement / affidavit

Question 7

Once the court has issued the application and provided a notice indicating the details of a hearing, what happens next?

Answer 7

The application notice must be served on the other party

Question 8

Once a standard interim application notice has been issued, how long is there to serve the notice?

Answer 8

Not less than three clear days before the application is to be heard

Question 9

In a standard interim application period, if the respondent wants to serve further evidence, how long do they have to do it?

Answer 9

As soon as possible.

Question 10

When should a statement of costs be filed and exchanged in a standard interim application?

Answer 10

Not less than 24 hours before the hearing

Question 11

When can interim application matters be dealt with in the absence of a hearing?

Answer 11

If the parties have agreed the terms of the order

If the parties agree that there should be no hearing, or court does not consider a hearing appropriate

Question 12

How long will there be between service of notice of IA and a hearing in a standard IA process?

Answer 12

As soon as possible, not less than 3 clear days.

Question 13

When will an application be permitted without notice?

Answer 13

Urgency
Furthers the overriding objective
All parties consent
Court gives permission
Court order / rule / PD permits
Date for a hearing is fixed and there is not enough time to

Question 14

If an application is allowed without notice, what procedural safeguards kick in?

Answer 14

The application must explain why no notice has been given, draw attention to arguments and evidence in support of the respondent’s position, and give full and frank disclosure.

Question 15

What must the applicant do as soon as possible after a without notice hearing?

Answer 15

Serve respondent application notice, evidence, and order

Question 16

If a court order has been given in a without notice procedure, what must the court order contain?

Answer 16

A statement of the respondent’s right to make an application to set aside or vary the court order within 7 days of it being served on the other party

Question 17

What is the purpose of summary judgment?

Answer 17

Allows the court to dispose of claims or issues without the need for a full trial

Question 18

What test will a court apply regarding summary judgment?

Answer 18

If a party has no real prospect of succeeding on their claim, and there is no other compelling reason why the case or issue should be disposed of at trial

Question 19

How does the court interpret “no real prospect”?

Answer 19

Position is fanciful, imaginary, false

Question 20

When can a claimant apply for summary judgement?

Answer 20

After the defendant has acknowledged service, or defence

Or earlier - with the court’s permission

Question 21

When can a defendant apply for summary judgment?

Answer 21

Any time after proceedings have commenced

Question 22

When can the court apply for summary judgment?

Answer 22

Court can fix a hearing of its own initiative whenever

Question 23

What is the effect of an application for summary judgment?

Answer 23

Pauses proceedings

Question 24

What are three relevant sets of time limits for summary judgment

Answer 24

Application notice must be served on the other party at least 14 clear days before the hearing

Further evidence should be served by respondent at least 7 clear days before the hearing

Applicant’s reply and any further evidence should be served 3 clear days before the hearing.

Question 25

What should a summary judgment application notice include?

Answer 25

Contain a statement that it is an application for SJ Be clear that respondent has to file and serve any evidence at least 7 clear days before SJ hearing

Question 26

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

Answer 26

Dismissing application Dismissing claim Judgment on claim Conditional order; respondent can continue, subject to conditions.

Question 27

What is an interim payment?

Answer 27

A payment on account of damages, debt or another sum which a defendant may be held liable to pay a claimant

Question 28

Who always makes a request for an interim payment?

Answer 28

The claimant

Question 29

What conditions must be satisfied (one of, not all) for an interim payments order?

Answer 29

D has admitted liability to pay damages C has obtained judgment for damages to be assessed Court is satisfied that if the claim went to trial, claimant would obtain judgment for a substantial amount of money

Question 30

What must evidence provided by the applicant deal with?

Answer 30

* Reasons for believing that conditions are fulfilled * Sum of money for which final judgment should be given * Sum of money sought by way of interim payment * Items / matters in respect of which interim payment is sought * Any other relevant matters * Personal injury claims: details of special damages, past and future loss * Fatal Accidents Act 1976 – details of person on whose behalf claim is made + nature of the claim

Question 31

What should a claimant do before making an interim payment application?

Answer 31

Make a request for a voluntary payment from the defendant first.

Question 32

When can the claimant not apply to the court for an interim payment?

Answer 32

Before the end of the period for the defendant filing an acknowledgment of service.

Question 33

What limits on the value of the payment are there on the court?

Answer 33

Court must not make an interim payment more than a reasonable proportion of the likely amount of final judgment It can order a payment in instalments

Question 34

When will an interim payment be disclosed to a trial judge?

Answer 34

Unless the defendant agrees, interim payments will only be disclosed to the trial judge when all questions of liability and quantum have been decided.

Question 35

What is security for costs?

Answer 35

An application made by the defendant who is concerned that the claimant will not be able to pay the defendant's costs should a claim be successfully defended

Question 36

What is the most common way that security for costs be given?

Answer 36

Payment into court by the claimant

Question 37

Who can make an application for security for costs?

Answer 37

* Defendant against a claimant * Claimant against a defendant in respect of a counterclaim * By a third party against a defendant in respect of an additional claim

Question 38

What are the two grounds for security for costs?

Answer 38

Considering all the circumstances, it is just One or more prescribed conditions are satisfied.

Question 39

What other factors will the court look at considering the 'justness' of the claim for security for costs.

Answer 39

Admission of liability of defendant or substantial open offers - make's Ds application less likely to succeed Delay makes application less likely to succeed - application should be made promptly Not genuine / little prospect of success If the defendant itself has been responsible for the claimant's financial difficulties If the defendant is using the application to stifle a genuine claim by the claimant

Question 40

What are the three conditions of the second rule?

Answer 40

Claimant is a resident out of jurisdiction, but is not a resident in a state bound by the 2005 Hague Convention Claimant is a company and there is a reason to believe it will be unable to pay D's costs if ordered Claimant has taken steps in relation to assets that would make enforcement of a costs order against it difficult.

Question 41

When is a state considered out of jurisdiction?

Answer 41

Outside England and Wales, and not a 2005 Hague Convention State

Question 42

What must be shown to suggest an impecunious company?

Answer 42

Must be able to show that there is a reason to believe claimant company WILL be unable to pay - not that it is a possibility A reason to believe can be shown, even if a claimant company can adduce substantial evidence to the contrary

Question 43

What are all the conditions for a security for costs order subject to?

Answer 43

The court's discretion that it is just to make such an order

Question 44

What three less significant factors might also be considered in terms of security for costs?

Answer 44

1) Claimant has changed address with a view to evading litigation consequences 2) Claimant failed to give address in claim form 3) 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

Question 45

What is the court's main consideration when considering justness for security for costs?

Answer 45

Ability of the respondent to comply with any order for security for costs - can't impair the claimants right to the justice system - must balance that injustice to the right of the defendant having no costs paid if they win

Question 46

What are the procedural requirements for security for costs

Answer 46

Same rules apply as for interim applications

Question 47

What factors will the court consider when considering the amount of security to order?

Answer 47

Amount of D's likely costs Security for whole action or up to a point in time Pre-action and future costs? Deduction for a likely reduction on settling etc Other factors

Question 48

In what form might the court order the claimant to give security for costs?

Answer 48

* Payment into court – most common order * Payment to the defendant’s solicitor * Bank guarantee * Undertaking to pay costs

Question 49

What is the purpose of an interim injunction?

Answer 49

Make sure a party must do, or must not do something in particular Temporary measure at an early stage in proceedings to restrain respondent from causing irreparable or immeasurable damage to applicant

Question 50

What circumstances are interim injunctions usually made in?

Answer 50

Situations of real urgency

Question 51

What is a prohibitory injunction?

Answer 51

Makes respondent refrain from doing an act

Question 52

What is a mandatory injunction?

Answer 52

Requires the respondent to do a specific act.

Question 53

What is quia timet injunction?

Answer 53

An injunction where a wrong has been threatened, but not yet committed. Can be either prohibitory or mandatory

Question 54

When will an interim injunction be granted?

Answer 54

When it is just and convenient - applying the American Cyanamid guidelines

Question 55

What are the American Cyanamid guidelines on whether an injunction should be granted?

Answer 55

1) Is there a serious question to be tried? [Cannot be frivolous or vexatious] 2) Would damages be an adequate remedy for a party injured by the court's grant of , or failure to grant, an injunction? Consider both the applicant and the respondent 3) Where does the balance of convenience lie?

Question 56

What type of remedy is an injunction?

Answer 56

Equitable and therefore discretionary

Question 57

What in particular about the respondent's perspective to the interim injunction would suggest that an injunction should be granted?

Answer 57

If the respondent could be adequately compensated by the applicant if it transpires that the injunction was wrongly granted? If yes - injunction should be granted

Question 58

What additional procedural requirements are there for interim injunctions?

Answer 58

Applicant must offer a cross undertaking in damages to the respondent for any loss, if it transpires that the injunction should not have been granted Court can also require an undertaking for any other party who might suffer some loss

Question 59

What are the 'without notice' procedural safeguards for an interim injunction?

Answer 59

If made without notice, it will be initially granted for a limited period only, and court will fix a return date

Question 60

What orders can the court make at a return date hearing for an interim injunction?

Answer 60

Maintain order Discharge Vary terms of the injunction Accept an undertaking by the respondent to not do acts in question, instead of an injunction

Question 61

When can an application for an interim injunction be made before a claim is even issued?

Answer 61

In cases of exceptional urgency, and also in the interests of justice

Question 62

If an application is given without notice, what procedural things must happen?

Answer 62

Applicant must make full and frank disclosure, including anything helping respondent's case Full note of hearing made, and served on the respondent without delay