1
Q
What are interim applications?
A
Interim applications are applications made to the court after litigation has started but before the trial takes place. They address various matters that arise during the litigation process when parties need the court’s intervention or direction on a particular issue.
2
Q
Why might interim applications be necessary?
A
Cases do not always proceed seamlessly to trial. One or other of the parties will often need to bring a particular matter before the court along the way. These applications ensure the case proceeds as quickly and efficiently as possible in accordance with the overriding objective.
3
Q
What are the main types of interim applications covered in this chapter?
A
The chapter covers several common interim applications: General procedural applications (Part 23), Summary judgment applications, Interim injunctions, Interim payments, Security for costs is also an interim application but is discussed in Chapter 11.
4
Q
What is the general aim of interim applications?
A
In most instances, the aim is to ensure that the case proceeds as quickly and efficiently as possible in accordance with the overriding objective. They help manage the litigation process and address issues that arise before trial.
5
Q
What are the four main purposes of interim applications? (Table 6.1)
A
The four main purposes are: To ensure compliance with procedural matters - Examples include: Permission to serve a claim form out of the jurisdiction, Challenging the court’s jurisdiction, Permission to amend a statement of case or to make an additional claim. To request more time - Examples include: To serve a claim form or a defence, To serve the list of documents (see Chapter 8). To assist in preparation for trial - Examples include: Requiring a reply to a Part 18 request for further information, Seeking disclosure of documents. To consider penalties - Examples include: Applying for a sanction against the opponent for failing to meet a deadline, Applying for relief from a sanction imposed by the court, such as the imposition of a penalty costs order or the striking out of a claim.
6
Q
Which part of the CPR governs interim applications?
A
Part 23 of the CPR sets out the general rules governing applications to the court. However, these general rules are subject to additional express provisions that apply to specific types of applications (such as summary judgment under Part 24).
7
Q
What should parties do BEFORE making an interim application to the court?
A
Before applying to the court, the parties should seek to resolve matters between themselves so as to comply with the overriding objective and to avoid the imposition of costs penalties. This will usually be achieved by the exchange of correspondence, whether by letter or email, and only if that fails should an application be made.
8
Q
According to Practice Direction 23, when should an application be made?
A
Practice Direction 23 is clear that every application should be made as soon as it appears necessary or desirable to make it. Delay in making applications can lead to costs penalties and is contrary to the overriding objective.
9
Q
What form must be used to make an interim application?
A
Under rule 23.3, the party who is applying (the applicant) must complete an application notice using Form N244.
10
Q
Who are the two parties in an interim application?
A
The applicant: The party who is applying for the order, The respondent: The party against whom the order is sought.
11
Q
Where must an interim application be made according to rule 23.2?
A
By rule 23.2, the application must be made to: The court where the claim started, OR (If relevant) to where it has been transferred. Special rule: If the claim has already been listed for trial, the application must be made to the court where the trial is to take place.
12
Q
Who typically hears interim applications?
A
Most applications will be heard by: A master in the Royal Courts of Justice, OR A district judge in either the County Court or a High Court District Registry.
13
Q
What must an application notice state?
A
An application notice must state: What order is being sought (the specific relief requested), Why (the reasons/grounds for the application).
14
Q
What additional information must be included in the application notice?
A
The application notice must also include: A time estimate as to how long the hearing of the application is likely to last,
Unless the application is being made without notice, the respondent should be consulted about the time estimate,
The court must be given a realistic time estimate so that it can allocate an appropriate amount of time for the hearing,
Details of any vulnerable party or witnesses should be given,
The application must be verified by a statement of truth.
15
Q
Is evidence required for an interim application?
A
Although there is no specific requirement to provide evidence, as a matter of practical reality, it will be necessary to set out the facts the party is relying on in support of, or for opposing, the application.
16
Q
How can evidence be provided for straightforward applications?
A
If the issues raised are straightforward, the applicant will complete the box to be found on the second page of Form N244. However, if there is insufficient space on the form, a witness statement may be filed at the same time.
17
Q
Who should make the witness statement in support?
A
The witness statement should be made by the person best able to address the relevant points from personal knowledge: If the application is more technical (such as for amendment of a statement of case), this is likely to be the solicitor, In other situations, it may be the client.
18
Q
What should the witness statement contain?
A
The statement should: Include the factual information and the evidence in support of the application, Anticipate the opponent’s case, where appropriate.
19
Q
Why is the quality of the witness statement so important?
A
Sufficient detail must be provided to persuade the court to make the order, as there will be no oral evidence from witnesses at the hearing. Although the solicitor will make submissions, the judge will decide the issue primarily on the basis of the written evidence. Hence, it is important that the witness statement covers all the required points including, if necessary, attaching relevant documents as exhibits.
20
Q
What other documents can the party rely on?
A
The party may also rely on the contents of a statement of case, such as the particulars of claim.
21
Q
What does Practice Direction 23A say about draft orders?
A
Practice Direction 23A states that, except in the most simple of applications, the applicant should attach a draft of the order sought to assist the judge. This helps the court understand exactly what the applicant is requesting.
22
Q
How much notice must be given when serving an application notice?
A
The application notice must be served on the opponent at least three days before the court hearing to allow the other party to respond and to object to the application should they wish to do so.
23
Q
How are the ‘three clear days’ calculated? (Example)
A
Using the example from the textbook: Hearing date: Thursday 10 November, Counting back, the three clear days are: Wednesday 9, Tuesday 8, and Monday 7 November, The weekend is excluded, Latest day for documents to arrive: Friday 4 November, Since documents sent by first class post are deemed served on the second day after being sent (provided it’s a business day), the application notice and witness statement must be posted no later than Wednesday 2 November.
24
Q
What is a consent order?
A
If the parties have reached agreement on the order they require, they can apply to the court for an order to be made by consent without the need for attendance at the hearing.
25
What must parties provide when seeking a consent order?
The parties must ensure they provide the court with any material it needs to be satisfied that it is appropriate to make the order. Usually a letter will suffice.
26
What is the main advantage of consent orders?
The main advantage of this is the saving of costs for all concerned, as no hearing is required.
27
What is the general rule about notice for applications?
The general rule is that applications must be made on notice to the other party. This ensures that the opponent is aware of the application so they may file evidence in response and arrange for attendance at the hearing.
28
When can applications be made without notice?
There are exceptions to the rule that applications must be made on notice. These exceptions are listed under PD 23A, para 3, and most commonly arise where: There is exceptional urgency, OR The overriding objective of the CPR would be best achieved by making an order without notice.
29
What are the most common examples of applications without notice?
The most common examples are where the applicant is applying for: An injunction to freeze their opponent's financial assets, OR An order to search their premises. Clearly, in these instances, giving warning of the intended action would defeat the purpose of the application as it would allow time for assets to be moved or destroyed.
30
What must the evidence explain in a without notice application?
Where an application is made without notice to the respondent, the evidence must explain why notice was not given.
31
What is the duty of full and frank disclosure?
The applicant must also show that they have a strong enough case to justify the court not hearing the respondent's case. This is a departure from the rules of natural justice that all parties should be heard. Therefore, in the interests of fairness, the applicant must: Disclose all relevant facts, including any matters favourable to their opponent, Not take advantage of the respondent's absence at the hearing, Draw the court's attention to evidence and arguments they reasonably anticipate the respondent would wish to make. This duty is often called the duty of full and frank disclosure (see Kensington Income Tax Commissioners [1917] 1 KB 486).
32
What documents must be served if an order is made without notice?
If an order is made on an application without notice, the following copy documents must be served on the respondent, as soon as it is practicable to do so: The court order (which will contain a statement of the right of the respondent to make an application to set aside or vary the order), The application notice, Any supporting evidence.
33
What can the respondent do after receiving an order made without notice?
The respondent may apply to set aside or vary the order within seven days of service of the order upon them.
34
What is the general rule about telephone hearings?
Many courts now have the facilities to conduct hearings by telephone or video conferencing. This is actively encouraged and, under PD 23A, the general rule is that interim applications with a time estimate of one hour or less will be conducted by telephone if at all possible.
35
Are there exceptions to telephone hearings?
Yes, there are exceptions such as the hearing of an application made without notice to the other party.
36
Why do costs arise from interim applications?
Any interim application will involve the parties incurring additional expense, for example, in: Collecting evidence, Preparing the application notice and supporting witness statement, Attending the hearing, A court fee is also payable.
37
When does the judge decide costs for interim applications?
At the end of any interim application, the judge will decide the issue of costs – often referred to as 'pay as you go' litigation.
38
What is the general costs rule for interim applications?
The general costs rule applies with the loser paying the winner's costs. Thus, if the application is granted, it is normal for the court to order the respondent to pay the applicant's costs.
39
What factors influence the type of costs order?
The type of costs order will depend upon the nature of the application and interim costs orders usually reflect, to a large extent, the conduct of the parties. For example, a party who wants permission to amend their statement of case starts from a weak position as the document should perhaps have been properly drafted in the first place; hence, they may have to pay the costs of the application even if they are successful.
40
What does a '[Named party's] costs' order mean?
Effect: The party named in the order is entitled to their costs of the interim application whatever other costs orders are made in the proceedings. If fixed costs do not apply, these costs are normally summarily (instantly) assessed and ordered to be paid within 14 days. Example: An order for 'claimant's costs' would mean that the defendant must pay the claimant's costs. When applied: When there is a clear 'winner' such as where the claimant succeeds in their application for summary judgment. The unsuccessful party would be ordered to pay the costs.
41
What does a 'Costs in the case' order mean?
Effect: In an order for costs in the case, no party is named and, at this stage, neither party can recover their costs. It only becomes apparent who is to pay the costs of the interim application at the conclusion of the proceedings. The ultimate loser of the litigation will also be liable for these costs. When applied: This could apply if the court makes a conditional order, for example, that the defendant may continue to defend the proceedings but only if they file a full defence within 14 days. If they fail to do so, only then would the claimant receive the costs of the interim application.
42
What does a 'No order as to costs' mean?
Effect: Each party is to bear their own costs of the interim application whatever costs orders are made at the end of the proceedings. When applied: This order is often made when the outcome of the interim application is effectively a draw with neither party being perceived to be at fault. An example may be where evidence later comes to light that requires additional witness statements to be filed.
43
What are the defendant's options once a claim has been served?
Once a claim has been served, the defendant may: Do nothing – in which case the claimant will apply for default judgment, Admit the claim, allowing the claim to be enforced, File a full defence so the case proceeds to trial.
44
What is the 'fourth option' and why does it exist?
The fourth option is summary judgment. Sometimes the defendant will file a weak defence, either because: Their case has no substance, OR As a delaying tactic to buy more time (perhaps they are looking for additional evidence, or they do not have the available financial assets to pay the claim). If the defence received is poor, the claimant would almost certainly succeed at trial but this would cost them additional time and money. To enable a claimant to bring the matter to an early conclusion, Part 24 of the CPR provides for summary judgment.
45
the "fourth option" and why does it exist?
The fourth option is summary judgment. Sometimes the defendant will file a weak defence, either because: Their case has no substance, OR As a delaying tactic to buy more time (perhaps they are looking for additional evidence, or they do not have the available financial assets to pay the claim) If the defence received is poor, the claimant would almost certainly succeed at trial but this would cost them additional time and money. To enable a claimant to bring the matter to an early conclusion, Part 24 of the CPR provides for summary judgment.
46
Who can apply for summary judgment?
Although such applications are normally brought by the claimant, the defendant may also apply for summary judgment. This may occur if, for example, a litigant in person has filed a weak particulars of claim or one which has no legal basis.
47
What does rule 24.3 state about when summary judgment may be given?
Rule 24.3 states that the court may give summary judgment on the whole of the claim or on an issue if: It considers that the party has no real prospect of succeeding on the claim, defence or issue; AND There is no other compelling reason why the case or issue should be disposed of at a trial.
48
Are all cases suitable for summary judgment?
No. There are some cases which are clearly not suitable for summary judgment, for example, where: There are complex issues that need proper investigation at trial, OR Difficult questions of law However, Part 24 is a useful mechanism that should be considered by the parties wherever appropriate, particularly as it is consistent with the overriding objective of the CPR to deal with matters justly and at proportionate cost.
49
What does "real prospect" mean?
A 'real prospect' means more than merely arguable, as per ED&F Man Liquid Products Ltd v Patel & Anor [2003] EWCA Civ 472.
50
How does the court determine whether there is "no real prospect"?
In determining whether the claimant has a real prospect of succeeding in their claim or a particular issue, or the defendant of defending theirs, the court will consider the evidence. This will, of course, vary from case to case.
51
What must the applicant demonstrate for summary judgement (no real prospect)?
An applicant should seek to demonstrate that the basis of their opponent's claim or defence is 'merely fanciful, imaginary, unreal or intrinsically unrealistic' (as per Otton LJ in Sinclair v Chief Constable of West Yorkshire and Another [2000] LTL, 12 December).
52
What will the respondent argue?
The respondent will seek to argue that there is solid evidence and/or a solid basis behind their statement of case, and so the court should dismiss the application.
53
Why is summary judgment particularly relevant with the increase in litigants in person?
With the increase in litigants in person, there is a risk that claims are pursued or defended with limited understanding of the legal merits of a particular issue or the requirements of evidence. In these situations, the responsibility will fall upon the court to weed out the somewhat hopeless cases.
54
What is the second requirement for granting summary judgment?
In addition to the prospect of success being determined, in granting a summary judgment the judge must also be satisfied that there is no other compelling reason to allow the matter to proceed to trial.
55
What are the most common compelling reasons for a trial?
The most common reasons for a trial would be: The need to allow more time for the matter to be investigated, perhaps due to difficulties in contacting an important witness The claim or defence is of a highly complicated and/or technical nature so it can only be properly understood with all the evidence that would be available at a full trial The need to hear cross-examination of witnesses, particularly if one of the central issues (such as the terms of a contract) is disputed oral evidence.
56
What should the respondent focus on at the hearing?
It is important to bear in mind that the hearing is not the trial. The submissions should be based upon the criteria of Part 24, so the respondent should concentrate on establishing a compelling reason to allow the proceedings to continue and not attempt to argue their case in its entirety.
57
Is obtaining summary judgment straightforward?
No. Obtaining an order for summary judgment is not a given and indeed, the easier option may be for the judge to allow the proceedings to continue.
58
What must an applicant prove to succeed in summary judgment?
In summary: An applicant has to prove BOTH that: The respondent has no real prospect of succeeding on the claim, defence or issue, AND There is no other compelling reason why the matter should proceed to trial A respondent need only succeed in preventing the applicant from proving ONE aspect to ensure the dismissal of the application for summary judgment.
59
When can an application for summary judgment be made?
An application for summary judgment can be made by either party at any time. The only occasion where the court's permission is required is where the claimant wishes to apply before the defendant has filed an acknowledgment of service or a defence. However, given the requirement to convince the judge that the defendant has no real prospect of defending the claim, a claimant will invariably wait until after the defence has been filed.
60
What is the procedure for summary judgment applications?
The procedure is as follows: The applicant applies with Form N244 and (usually) a witness statement in support, along with a draft of the order sought The respondent must: Be given at least 14 days' notice of the hearing date, AND File and serve any written evidence at least seven days before the hearing If the applicant wishes to rely on further evidence, this must be filed and served at least three days before the hearing.
61
What happens if a claimant applies for summary judgment before a defence is filed?
If a claimant applies for summary judgment before a defence is filed, the defendant need not file a defence before the hearing of the summary judgment application.
62
What happens to other proceedings during a summary judgment application?
Until the application for summary judgment is heard, the proceedings are suspended for other purposes.
63
What are the possible orders the judge can make? (4 options)
The judge has a number of possible orders at their disposal:
(a) Judgment on the claim: This means that the claimant has succeeded in their application for summary judgment and the matter will proceed to enforcement.
(b) The striking out or dismissal of the claim: Here, the defendant has succeeded in their application to dispose of the claimant's claim and the case comes to an end.
(c) The application is dismissed: The applicant has failed to bring the case to an early conclusion and it will now proceed towards trial.
(d) A conditional order: The application has not been granted, but equally the respondent has not succeeded in having it dismissed – neither side has won.
64
When will a conditional order be made?
A conditional order will be made under rule 3.1(3) where the court concludes it is possible, but not probable, that the claim or defence may succeed.
65
What does a conditional order require?
The party will be allowed to continue with the litigation provided they: Pay a sum of money into court, OR Take a specified step in relation to their claim This ensures that the party is genuine in their desire and ability to pursue the matter and, in the case of the defendant, they are not merely delaying payment.
66
What happens when the court dismisses the application or makes an order that does not completely dispose of the claim?
Where the court dismisses the application or makes an order that does not completely dispose of the claim, case management directions are usually given as to the future conduct of the case.
67
What costs order is made when a claimant succeeds in obtaining summary judgment for a specified sum?
Where a claimant succeeds in obtaining summary judgment for a specified sum, the court may award costs and these will usually be fixed.
68
What costs order is made when a claimant is awarded summary judgment in an unspecified claim?
If a claimant is awarded summary judgment in an unspecified claim, the usual rule applies so that the winner (the claimant) is granted their costs. These will be: Fixed for cases on the fast and intermediate tracks, OR Summarily assessed for those on the multi-track Thereafter, a further hearing will be listed to assess the damages payable by the defendant (a disposal hearing).
69
What costs order is made if the defendant secures summary judgment so the entire claim is struck out?
If the defendant secures summary judgment so the entire claim is struck out, the court will normally order that the claimant pays the defendant's costs of the whole claim – again, either fixed costs or summarily assessed depending which track the claim is proceeding on.
70
What costs order is made if the application is dismissed?
If the application is dismissed, the proceedings will continue and the unsuccessful party will pay the successful party's costs of the summary judgment hearing.
71
What costs order is made if a conditional order is made?
If a conditional order is made, the usual order will be for costs in the case.
72
What is the overall benefit of applying for summary judgment?
Applying for summary judgment is a useful means of: Bringing the matter to an early conclusion, OR At the very least, putting pressure on the opponent to confront the claim.
73
What powers does the court have under Part 25?
Under Part 25 of the CPR, the court has wide powers to grant various interim remedies, including interim injunctions.
74
What is an injunction and how is it distinguished from other court orders?
An injunction is a court order, but injunctions can be distinguished from other court orders because their breach is punishable as a contempt of court.
75
Are injunctions automatic or discretionary?
They offer a discretionary remedy and may only be granted where damages would not be an adequate remedy for the applicant.
76
What is an interim injunction?
If an injunction is granted before trial, it is known as an interim injunction. Interim injunctions remain in force until the matter comes to trial (or until further order), at which point the court will decide whether or not to make a final injunction.
77
Who can apply for an interim injunction?
Either party may apply for (and be granted) an interim injunction in support of their cause of action.
78
What is the relationship between an interim injunction and the cause of action?
It should be noted that the right to obtain an interim injunction is secondary to a pre-existing cause of action. It is granted to preserve the status quo (the current position) pending the court's decision on the rights of the parties and the grant to the claimant of the relief to which their cause of action entitles them. This may or may not include a final injunction.
79
When may a party seek an interim injunction?
A party may seek an injunction at any time after proceedings have been commenced and, in exceptional cases, even beforehand.
80
When will the court grant an interim remedy before a claim has been made?
As per rule 25.2(2), the court will only grant an interim remedy before a claim has been made if it is satisfied that: The matter is urgent, OR It is otherwise desirable in the interests of justice.
81
What happens after an interim remedy is granted before proceedings commence?
Under rule 25.2(4), the court will then give directions requiring proceedings to be commenced.
82
What are prohibitory injunctions?
Prohibitory injunctions are those which restrain a defendant from taking certain steps. Such an injunction could: Preclude a defendant soliciting customers of a claimant, OR Prevent a defendant's use of confidential information obtained from a claimant.
83
What are mandatory injunctions?
Injunctions which require the defendant to take positive action, for example to stop committing a nuisance, are referred to as mandatory injunctions.
84
What guidelines do courts use when hearing applications for interim prohibitory injunctions?
When the court hears an application for an interim prohibitory injunction, it does not know all the facts and so, to assist in making the correct decision, judges refer to certain guidelines. These are set out in the case of American Cyanamid Co (No 1) v Ethicon Ltd [1975] UKHL 1 and are sometimes referred to by reference to this authority.
85
What is the step-by-step approach the court takes? (6 factors)
When deciding whether to grant an interim injunction, the court will take a step-by-step approach and will consider, in turn: (a) Whether damages would be an adequate remedy (b) Whether the applicant's cross-undertaking will provide adequate protection for the respondent (c) Whether the balance of convenience lies in favour of granting or refusing the injunction (d) Preserving the status quo (e) The strength of each party's case (f) Whether there are any special factors.
86
How does the court assess whether damages would be an adequate remedy?
The court will consider whether it would be possible to compensate either party financially for the consequences of its decision. The adequacy of damages as compensation is therefore considered from the perspective of both parties. For example, if damages would be an adequate remedy for a claimant's future losses, the court will refuse to grant an interim injunction. If damages would not be an adequate remedy, the court will move to the next factor.
87
What is the applicant's "cross-undertaking"?
If an interim injunction is granted, the applicant must undertake to the court to pay any damages that the respondent (or any other party affected by the order) sustains by reason of the injunction, if it subsequently transpires that the injunction ought not to have been granted. This is often called the applicant's 'cross-undertaking'. If there is doubt as to the adequacy of damages, the court will move to the next factor.
88
What does "balance of convenience" mean?
| prohibitory injunction
The court will consider what course of action will cause the least damage or injustice to the parties – whether it would cause more harm to the applicant if the injunction was wrongly refused than it would do to the respondent if the injunction was wrongly granted.
89
What does "preserving the status quo" mean?
Where other factors appear to be evenly balanced, providing the application is made promptly, the court will generally prefer to maintain the status quo until the trial.
90
How does the court consider the strength of each party's case?
The court does not generally investigate the full merits of the case when deciding whether or not to grant an interim prohibitory injunction. However, the balance may be tipped by considering whether there is a serious question to be tried based on the written evidence provided to the court on the hearing of the application. Here, the applicant must show that they have real prospects of success, and if they cannot do this, an injunction will not be made.
91
What special factors might the court consider?
In addition to the factors above, there may be other special factors, such as: Public policy The public interest.
92
Do the American Cyanamid guidelines apply to all types of injunctions?
No. It should be noted that these guidelines do not apply to mandatory injunctions, which are much more difficult to obtain, as the court usually requires clear evidence that the claimant is likely to succeed at trial. The guidelines are therefore not appropriate for freezing injunctions and search orders, which carry their own rules.
93
What documents must be filed for an interim injunction application?
As with other types of applications, the party who seeks the order must apply by way of: An application notice With evidence in support (usually a witness statement) Along with a draft order.
94
How are interim injunctions usually obtained?
Interim injunctions are usually obtained on notice, so the defendant has prior warning of the hearing.
95
How long do interim injunctions obtained on notice last?
They last until the trial of the claimant's action unless they are set aside earlier by the court, perhaps because of a change of circumstances.
96
When may the court grant an interim remedy without notice?
97
When may the court grant an interim remedy without notice?
Under rule 25.3(2), the court may grant an interim remedy on an application made without notice if there are good reasons for doing so. This could be due to: The matter being so urgent that the applicant does not have time to tell the respondent that they intend to seek an injunction Secrecy is needed because if the defendant learns of the claimant's plans, they will try to cause irreparable harm to the claimant before an injunction can be secured.
98
Does the duty of full and frank disclosure apply to injunctions without notice?
Yes. The duty of full and frank disclosure applies to applications made without notice (see earlier in the chapter).
99
What are the two forms that an injunction without notice can take?
An injunction without notice takes one of two forms: (a) The court may fix a date for a further hearing with all parties present, in which case it lasts until the date specified for that hearing. If the defendant successfully argues that the injunction should not be granted, it will be set aside. (b) Alternatively, rather than fixing a hearing date, an injunction without notice may simply tell the defendant that they may, if they wish, apply on notice for the order to be varied or set aside. In the meantime, the injunction remains in force until trial or further order.
100
What are freezing injunctions?
Freezing injunctions restrain a party from removing their assets from the jurisdiction (England and Wales). If notice was given of such an application, the respondent could simply transfer their assets prior to the hearing.
101
What must the court be satisfied of to order a freezing injunction?
To order a freezing injunction, the court must be satisfied that: The claimant has a good arguable case The claimant has adduced sufficient evidence as to the existence and location of assets that would be affected There is a real risk that the defendant may dispose of their assets so as to render any judgment which the claimant may obtain as being worthless.
102
What does "good arguable case" mean for freezing injunctions?
In Dos Santos v Unitel SA [2024] EWCA Civ 1109, the Court of Appeal clarified that the threshold test of a 'good arguable case' should be equivalent to the claimant demonstrating there is a serious issue to be tried on the merits of the case.
103
What are search orders?
A search order compels the respondent to allow their premises to be searched by the applicant, where the applicant believes that the respondent has documents or property belonging to them. Again, if notice was given to the respondent in advance, it would be a simple matter for them to hide the items somewhere else.
104
What must the court be satisfied of to grant a search order?
The court must be satisfied that: The applicant appears to have a strong case They will suffer serious harm if the order is not made The respondent has incriminating materials in their possession which cannot be obtained by other means.
105
Who typically hears applications for freezing injunctions and search orders?
Because freezing injunctions and search orders can be quite draconian in their impact upon the respondent, such applications are normally made to a High Court judge.
106
What type of evidence is required for freezing injunctions and search orders?
Applications for freezing injunctions and search orders must be supported by affidavit evidence, as per rule 25.13 and rule 25.17(1) respectively. An affidavit is a document that is similar in content to a witness statement but it is sworn or affirmed by the person making it (see Chapter 9).
107
What must the affidavit address?
The affidavit must address all the conditions for obtaining the order, and: In the case of a freezing injunction, the affidavit should explain the risk that the assets will be dissipated In the case of a search order, the affidavit should describe the premises and the relevant documents or property, and show a strong case that serious harm or serious injustice will be suffered if the order is not made.
108
What is an interim payment?
One particular type of interim remedy also covered by Part 25 is an interim payment. This is an advance payment on account of any damages, debt or other sum (excluding costs) that a defendant may be held liable to pay.
109
What is the purpose of the interim payment procedure?
The interim payment procedure enables a claimant who has a strong case on liability to avoid the financial hardship and/or inconvenience that might otherwise be suffered because of any delay during the period between the start of the claim and its final determination.
110
What should a claimant do before making an application for an interim payment?
Before making an application to the court, the claimant should try to negotiate with the defendant or the defendant's insurance company to obtain a voluntary interim payment. An application should only be made if one is not forthcoming.
111
When may a claimant seek an interim payment?
Under rule 25.21(1), a claimant may not seek an interim payment until after the time for acknowledging service has expired, although they can make more than one application during the proceedings.
112
What notice period is required for interim payment applications?
An application notice for an interim payment must be served at least 14 days before the hearing date.
113
What must the evidence deal with according to rule 25.22(1)? (7 matters) for interim payment
Evidence must be provided and rule 25.22(1) confirms that the evidence should deal with:
(a) The amount of money requested by way of an interim payment
(b) The items or matters in respect of which the interim payment is sought (in other words – what it will be used for)
(c) The amount of money that is likely to be awarded at final judgment
(d) The reasons for believing that one of the conditions required by rule 25.23 is satisfied (see below)
(e) Any other relevant matters (for example, whether the defendant has the ability to make the payment)
(f) In a claim for personal injuries, details of past and future losses
(g) In a claim under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim is made, and the nature of the claim.
114
Does the claimant need to demonstrate a "need" for the interim payment?
It is important to note that whilst a claimant will set out in their application why the interim payment is required, they do not need to demonstrate a need for the interim payment.
115
What documents should be exhibited to the witness statement for Interim Payment?
By rule 25.22(2), any documents in support of the application should be exhibited to the witness statement, including any medical report in a personal injury claim.
116
What is the procedure for the respondent's evidence for interim payment?
If the respondent wishes to rely on written evidence to counter the application, this must be filed, and copies should be served on the applicant at least seven days before the hearing.
117
What is the procedure for the applicant's further evidence? interim payment
The applicant may then respond with further evidence provided it is filed and served at least three days before the hearing.
118
When may the court make an interim payment order?
The court may only make an interim payment order where a condition under rule 25.23 is satisfied.
119
What are the main conditions under rule 25.23? (3 conditions)
The main conditions are as follows:
(a) The defendant has admitted liability to pay damages or some other sum of money to the claimant; OR
(b) The claimant has obtained a judgment against the defendant for damages to be assessed or for a sum of money to be awarded; OR
(c) The court is satisfied that, if the case went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom they are seeking the interim payment.
120
When is an order for an interim payment often sought?
An order for an interim payment is often sought if there is likely to be a delay in the assessment of damages, perhaps because the situation is ongoing or particularly complex.
121
What is the burden on the applicant for condition (c)?
As to condition (c), the burden on the applicant is high. They must prove, on the balance of probabilities, that they will succeed and it is not enough that the court considers it likely they will do so. This is a common sense approach because, once the money has been paid out, it may not be possible to obtain its return.
122
What two questions does the court have discretion over?
Having established their entitlement to an interim payment, the court has discretion in relation to two questions: (a) Should an order for an interim payment be made? If the issues are complicated or difficult questions of law arise, the court may decide not to order an interim payment at all. (b) If yes, what should the amount be?
123
What is the maximum amount the court can order?
If the applicant succeeds, under rule 25.20(1), the court must not order a sum of more than a reasonable proportion of the likely amount of the final judgment.
124
What is considered a "reasonable proportion"?
There is no strict rule confirming what equates to a reasonable proportion. However, the Court of Appeal's decision in Spillman v Bradfield Riding Centre [2007] EWHC 89 (QB) suggests that a maximum of 75% of the likely final award of damages will be ordered, as such a percentage would provide sufficient protection to a defendant against any overpayment if the final award was not as substantial as had been anticipated.
125
What else must the court take into account under rule 25.20(2) for interim payment?
By rule 25.20(2), the court must also take into account: Contributory negligence, AND Any counterclaim In other words, the court will try and calculate what figure is indisputably due to the claimant and then determine what the defendant is able to pay.
126
How may an interim payment be ordered?
The court may order an interim payment in: One sum, OR In instalments.
127
Will the trial judge be told about the interim payment?
By rule 25.25, the trial judge will not be told about any interim payment order or voluntary payment until after they have determined all issues of liability and quantum, unless the defendant consents.
128
Why is the payment kept secret from the trial judge?
As the purpose of keeping any payment secret is to avoid the trial judge's decision being influenced in any way, it is difficult to see when a defendant would provide their consent.
Dispute Resolution
flashcards
Decks in class (12)
# Cards
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Unit 1 - Steps to take before starting court proceedings (Ch 1/2)100
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Unit 2 - Commencing Proceedings (Ch 3)115
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Unit 2 - Responding to a claim (Ch 4)60
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Unit 3 - Statements of Case (Ch 5)115
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Unit 3 - Interim Applications (Ch 6)128
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Unit 4 - Costs and Case Management (Ch 7)101
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Unit 4 - Disclosure (Ch 8 )63
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Unit 5 - Evidence186
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Unit 6 - Trials and Appeals (Ch 10)147
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Unit 6 - Costs (Ch 11)141
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Unit 7 - Non Party Costs (Ch 11.7) Security for Costs (Ch 11.8) Offers to settle and costs (Ch 11.9) Part 36 Offers (Ch 11.10 Calderbank Offers (Ch 11.1151
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Unit 7 - Enforcement of Money Judgements (Ch 12)96
