13 Interim applications

Question 1

What is the timing to make interim applications?

Answer 1

Every app made as soon as apparent that necessary or desirable.

Interim order MAY be made at ANY time, inc BEFORE proceedings started. Where app made before proceedings, directions should be given to issue CF.

C MAY make app before commencing proceedings where:

1. Urgent; or
2. Otherwise desirable in interests of justice.

Question 2

How to dispense with the application notice?

Answer 2

All apps need application notice UNLESS:

1. Permitted by CPR or PD
2. Permitted by court order

Question 3

What does without notice application mean?

Answer 3

means without giving 3 full days’ notice to R.

Question 4

You can only dispense with service of application notice if:

Answer 4

1. Exceptional urgency
2. OO furthered
3. Consent
4. Court grants permission
5. Where hearing is fixed for another purpose + party wants to make app @ hearing but no time to give 3 days’ notice
6. Rule, PD or court order permits
7. Where app requires security

“If it appears to court that there are good reasons for not giving notice”.

Question 5

What is the jurisdiction for interim applications?

Norm app MUST be made to court where claim being dealt. EXCEPTION:

Answer 5

1. Claim transferred
2. Claim listed at another court
3. App made AFTER judgment.

Question 6

What happens in multi track cases

interim applications?

Answer 6

In multi-track case = norm time = @ first case management conference. Party inviting court to make directions/orders not normal dealt with at CMC + likely to be oppressed, MUST issue + serve app.

Question 7

What is the Right to set aside or vary WITHOUT notice orders ?

Answer 7

Order made without notice MUST incl details of R’s right to apply within 7 days of service to set aside/vary. Where court grants order, copy of app notice + evidence MUST, unless court orders otherwise, be served with order on any party –

1. Against whom order made; and
2. Against whom order sought

Order MUST contain statement of right to make app to set aside/ vary. A person not served with copy of app notice before order MAY apply to have order set aside/ varies. An app MUST be made within 7 days after order SERVED.

Question 8

What happens with interim applications and summary judgments?

Answer 8

Applied ONLY AFTER D acknowledge service/def

INTERIM PAYMENT = Applied ONLY AFTER D acknowledge service/defence. But summary judg + striking out norm made BEFORE filing directions questionnaires. For interim remedies, they MAY be made after final judgment given.

Question 9

What happens if you apply for an interim application without notice?

Answer 9

MUST comply duty full + frank disclosure. INCLUDES: material facts aware of, and those which you should have on making reasonable enquiries.

Question 10

What is the Procedure on without notice apps?

Answer 10

• Issue app notice
• Supported by written evidence
• Written evid MUST state why notice not been given
• Draft order
• Papers filed at court at least 2 hours before hearing
• Informal/ short notice MUST normally be given.

Apps without notice norm in public, norm in judge’s private room.

Question 11

If app heard by telephone/video, app notice MUST be served

Answer 11

5 clear days before hearing.

Question 12

What is the duty of full and frank disclosure?

Answer 12

MUST disclose all material facts or law, inc those against the application. MUST draw court’s attention to unusual features of evidence + any known to A or which could have been discovered on making reasonably inquiries. CONTINUING DUTY. Duty also applies where short notice (less than 3 clear days) is given + R represented @ hearing.

All material facts MUST be in affidavit, NOT documents exhibited to it.

Question 13

When is there a breach of the duty of full and frank disclosure?

Answer 13

1. Order MAY, norm will, be discharged whatever the merits.
2. Costs sanction likely.

BUT – court MAY discharge or re-grant order. Innocent non-disclosure MAY be forgiven. Relevant factors:

1. Gravity of breach
2. Excuse or explanation
3. Severity + duration of any prejudice
4. Whether breach conseq remediable

Question 14

court MAY discharge or re-grant order. Innocent non-disclosure MAY be forgiven. Relevant factors:

Answer 14

1. Gravity of breach
2. Excuse or explanation
3. Severity + duration of any prejudice
4. Whether breach conseq remediable

Question 15

What are without notice apps for interim applications?

Answer 15

app docs served to other side. MUST served ASAP after N244 filed + at least 3 clear days before “return day”

Question 16

Can you apply for interim application without a hearing?

Answer 16

Court MAY deal with app WITHOUT HEARING if –

1. Parties agree to terms of order sought;
2. Parties agree court should dispose of app without hearing; or
3. Court doesn’t consider hearing appropriate

Question 17

How much notice do applications need?

Answer 17

Apps** **requiring 14 days notice

1. Summary judgment
2. Interim payment applications

On these apps:

• R’s evid MUST be filed + served 7 days before hearing
• Evid in response: 3 days before hearing

Question 18

Directions for evidence @ interim hearing =

Answer 18

Court MAY give directions for filing evid in support/opposing app and/or any hearing it fixes under own initiative. Directions MAY specify evid to be served.

Question 19

How to calculate the 3 day rule?

Answer 19

• Ignore weekends
• Ignore day of event

E.G. interim hearing on Wednesday next week = Ignore weekends = Friday, Monday, Tuesday = clear days. Ignore Wednesday (day of event). Service MUST take effect no later than Thursday. Service is deemed to take effect depending on service. E.g first class = deemed service = second day after posting (provided business day) = Last day to post is Thursday (second day after = Thursday).

Question 20

What is the procedure at interim hearings?

What are the exceptions to hearing being in public?

Answer 20

Usually based on written evid only. Usually in public – EXCEPTIONS:

1. Publicity would defeat object of hearing
2. Hearing on app without notice
3. Hearing involves confidential info and publicity would damage this.

Usually heard by District Judge or Master. Full judge often hears injunction app.

Question 21

Can you proceed in the absense of a party for interim applications?

Answer 21

Court MAY proceed in absence of party who fails to attend. If court makes order, court MAY relist the app or set aside, vary, discharge or suspend the order.

Question 22

TOTALLY WITHOUT MERIT APPS

If court dismisses an app + considers “totally without merit”, the:

Answer 22

1. Court’s order MUST record that fact; and
2. Court MUST consider whether to make a civil restraint order.

Question 23

What are the COSTS OF INTERIM APP

Answer 23

At end of interim app, judge norm makes order for costs of app. Norm starting point “costs follow the event”.

• 24 hours before hearing EACH PARTY files + serves a “schedule of costs”.
• At end hearing, counsel make submission who should bear costs
• Order silent on costs = each side bears own costs
• “Summary assessment” of interim costs will be made if:
  
  1. Hearing took no more than 1 day; and
  2. Order that one side pays the other side’s costs
• Where costs summarily assessed, sum awarded MUST be paid within 14 days of order.

Question 24

What are Penal notices in INTERIM INJUNCTION ORDERS?

Answer 24

Judgment or order restraining party from act or requires an act MUST (if disobedience to be dealt with proceedings for contempt of court) have a penal notice enforced.

Question 25

What is the form of penal notices in interim injunction orders?

Answer 25

Penal notice = appended to front of injunction order + unless court dispenses with service, MUST be served (with other order) by personal service.

Question 26

What are the penalities in the penal notices in interim injunction orders?

Answer 26

Imprisonment up to 2 years/ unlimited fine. Companies = sequestration of assets

Question 27

**INJUNCTION ORDERS** _UNDERTAKINGS_ Order for injunction MUST contain:

Answer 27

1. Undertaking by A **to pay damages;** 2. If made without notice, undertaking to **serve on R the application notice**, evid in support + order ASAP; 3. If without notice = **a return date** for further hearing 4. If made before filing app notice, undertaking to file + pay fee on same or next working day; and 5. If made before issue of CF – 1. Undertaking to issue + pay fee on same or next working day; or 2. Directions for the **commencement of the claim**.

Question 28

Is evidence required for all interim remedies?

Answer 28

Evid required for all interim remedies except case management directions. Evid in support MUST be served with app. No requirement to refile/reserve docs already filed or served @ earlier stage.

Question 29

Where interim applications are disposed of in less than a day, what happens?

Answer 29

Where interim app disposed in less than a day = court norm makes summary assessment of costs of app immediately after making order. Apps to extent time for serving CF = permitted without notice.