12 Interim Applications

Question 1

r23.2: where to make an application

Answer 1

(1) The general rule is that an application must be made to the court where the claim was started.
(2) If a claim has been transferred to another court since it was started, an application must be made to the court to which the claim has been transferred.
(3) If the parties have been notified of a fixed date for the trial, an application must be made to the court where the trial is to take place.
(4) Subject to paragraph (4A), if an application is made before a claim has been started, it must be made to the court where it is likely that the claim to which the application relates will be started unless there is good reason to make the application to a different court.

(4A) If –
(a) an application is made before a claim has been started; and
(b) the claim is a designated money claim,
the application may be made in any county court.

(5) If an application is made after proceedings to enforce judgment have begun, it must be made to any court which is dealing with the enforcement of the judgment unless any rule or practice direction provides otherwise.

Question 2

r2.4: judges and functions of the court

Answer 2

Where these Rules provide for the court to perform any act then, except where an enactment, rule or practice direction provides otherwise, that act may be performed –

(a) in relation to proceedings in the High Court, by any judge, Master or district judge of that Court; and
(b) in relation to proceedings in a county court, by any judge or district judge.

Question 3

PD25A, para 1: Jurisdiction for interim injunctions

Answer 3

1.1 High Court Judges and any other Judge duly authorised may grant ‘search orders’1 and ‘freezing injunctions’.

1. 2 In a case in the High Court, Masters and district judges have the power to grant injunctions:
   (1) by consent,
   (2) in connection with charging orders and appointments of receivers,
   (3) in aid of execution of judgments.
2. 3 In any other case any judge who has jurisdiction to conduct the trial of the action has the power to grant an injunction in that action.
3. 4 A Master or district judge has the power to vary or discharge an injunction granted by any Judge with the consent of all the parties.

Question 4

PD 2B para 2.2-2.4: Who can order an injunction

Answer 4

2.2: Except where paragraphs 2.3 and 2.4 apply, injunctions and orders relating to injunctions, including orders for specific performance where these involve an injunction, must be made by a Judge.

2. 3: A Master or a District Judge may only make an injunction:
   (a) in terms agreed by the parties;
   (b) in connection with or ancillary to a charging order;
   (c) in connection with or ancillary to an order appointing a receiver by way of equitable execution; or
   (d) in proceedings under rule 66.7 (order restraining person from receiving sum due from the Crown).

2.4: A Master or District Judge may make an order varying or discharging an injunction or undertaking given to the court if all parties to the proceedings have consented to the variation or discharge.

Question 5

PD 2B para 11.1: jurisdiction for trials and assessment of damages

Answer 5

A District Judge has jurisdiction to hear the following:

(a) any claim which has been allocated to the small claims track or fast track or which is treated as being allocated to the multi-track under rule 8.9(c) and the table at Section B of Practice Direction 8A, except claims:
(i) under Part I of the Landlord and Tenant Act 1927;
(ii) for a new tenancy under section 24 or for the termination of a tenancy under section 29(2) of the Landlord and Tenant Act 1954;
(iii) for an order under section 38 or 40 of the Landlord and Tenant Act 1987;
(iv) under paragraph 26 or 27 of Schedule 11 to or section 27 of the Agricultural Holdings Act 1986;
(v) under section 45(2) of the Matrimonial Causes Act 1973 for a declaration of legitimation by virtue of the Legitimacy Act 1976;
(vi) under section 35, 38 or 40 of the Fair Trading Act 1973; or
(vii) under Part II of the Mental Health Act 1983.

(b) proceedings for the recovery of land, proceedings under section 82A(2) of the Housing Act 1985 or section 6A(2) of the Housing Act 1988 (demotion claims) or proceedings in a county court under Chapter 1A of the Housing Act 1996 (demoted tenancies);
(c) the assessment of damages or other sum due to a party under a judgment without any financial limit;
(d) with the permission of the Designated Civil Judge in respect of that case, any other proceedings.

Question 6

PD2B para 6.2: Transfer between Masters

Answer 6

The fact that a case has been assigned to a particular Master does not prevent another Master from dealing with that case if circumstances require, whether at the request of the assigned Master or otherwise.

Question 7

PD23A para 2.7: When application should be made

Answer 7

Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.

Question 8

r25.2: When order for interim remedy can be made

Answer 8

(1) An order for an interim remedy may be made at any time, including –
(a) before proceedings are started; and
(b) after judgment has been given.

(2) However –
(a) paragraph (1) is subject to any rule, practice direction or other enactment which provides otherwise;
(b) the court may grant an interim remedy before a claim has been made only if –
(i) the matter is urgent; or
(ii) it is otherwise desirable to do so in the interests of justice; and
(c) unless the court otherwise orders, a defendant may not apply for any of the orders listed in rule 25.1(1) before he has filed either an acknowledgment of service or a defence.

(3) Where it grants an interim remedy before a claim has been commenced, the court should give directions requiring a claim to be commenced.
(4) In particular, the court need not direct that a claim be commenced where the application is made under section 33 of the Supreme Court Act 1981 or section 52 of the County Courts Act 1984 (order for disclosure, inspection etc. before commencement of a claim).

Question 9

r1.1: Overriding objective

Answer 9

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.

Question 10

PD26 para 2.2: Provision of extra information

Answer 10

(1) If a party wishes to give the court further information which is believed to be relevant to allocation or case management it shall be given when the party files the directions questionnaire and copied to all other parties.

(2) The general rule is that the court will not take such information into account unless the document containing it either:
(a) confirms that all parties have agreed that the information is correct and that it should be put before the court, or
(b) confirms that the party who has sent the document to the court has delivered a copy to all the other parties.

(3) The following are examples of information which will be likely to help the court:
(a) a party’s intention to apply for summary judgment or some other order that may dispose of the case or reduce the amount in dispute or the number of issues remaining to be decided,
(b) a party’s intention to issue a Part 20 claim or to add another party,
(c) the steps the parties have taken in the preparation of evidence (in particular expert evidence), the steps they intend to take and whether those steps are to be taken in co-operation with any other party,
(d) the directions the party believes will be appropriate to be given for the management of the case,
(e) about any particular facts that may affect the timetable the court will set,
(f) any facts which may make it desirable for the court to fix an allocation hearing or a hearing at which case management directions will be given.

Question 11

PD29 para 5.8: Making additional applications at the CMC

Answer 11

(1) Where a party wishes to obtain an order not routinely made at a case management conference and believes that his application will be opposed, he should issue and serve the application in time for it to be heard at the case management conference.
(2) If the time allowed for the case management conference is likely to be insufficient for the application to be heard he should inform the court at once so that a fresh date can be fixed.
(3) A costs sanction may be imposed on a party who fails to comply with sub-paragraph (1) or (2).

Question 12

PD29 para 3.8: when additional direction should be applied for

Answer 12

Where a party needs to apply for a direction of a kind not included in the case management timetable which has been set (for example to amend his statement of case or for further information to be given by another party) he must do so as soon as possible so as to minimise the need to change that timetable.

Question 13

PD29 para 6.2: Asking for variation of directions

Answer 13

(1) It is essential that any party who wishes to have a direction varied takes steps to do so as soon as possible.
(2) The court will assume for the purposes of any later application that a party who did not appeal, and who made no application to vary within 14 days of service of the order containing the directions, was content that they were correct in the circumstances then existing.

Question 14

r24.4(1): When C can apply for summary judgment

Answer 14

(1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed –
(a) an acknowledgement of service; or
(b) a defence,
unless –
(i) the court gives permission; or
(ii) a practice direction provides otherwise.

Question 15

PD26 para 5.3: Summary judgement/other early termination: when application should be made

Answer 15

(1) A party intending to make such an application should do so before or when filing his directions questionnaire.
(2) Where a party makes an application for such an order before a claim has been allocated to a track the court will not normally allocate the claim before the hearing of the application.
(3) Where a party files an directions questionnaire stating that he intends to make such an application but has not done so, the judge will usually direct that an allocation hearing is listed.
(4) The application may be heard at that allocation hearing if the application notice has been issued and served in sufficient time.

Question 16

r25.6: General procedure for interim payments

Answer 16

(1) The claimant may not apply for an order for an interim payment before the end of the period for filing an acknowledgment of service applicable to the defendant against whom the application is made.
(2) The claimant may make more than one application for an order for an interim payment.

(3) A copy of an application notice for an order for an interim payment must –
(a) be served at least 14 days before the hearing of the application; and
(b) be supported by evidence.

(4) If the respondent to an application for an order for an interim payment wishes to rely on written evidence at the hearing, he must –
(a) file the written evidence; and
(b) serve copies on every other party to the application,
at least 7 days before the hearing of the application.

(5) If the applicant wishes to rely on written evidence in reply, he must –
(a) file the written evidence; and
(b) serve a copy on the respondent,
at least 3 days before the hearing of the application.

(6) This rule does not require written evidence –
(a) to be filed if it has already been filed; or
(b) to be served on a party on whom it has already been served.

(7) The court may order an interim payment in one sum or in instalments.
(Part 23 contains general rules about applications)

Question 17

r23.4: Notice of the application

Answer 17

(1) The general rule is that a copy of the application notice must be served on each respondent.

(2) An application may be made without serving a copy of the application notice if this is permitted by –
(a) a rule;
(b) a practice direction; or
(c) a court order.

(Rule 23.7 deals with service of a copy of the application notice)

Question 18

r7.6(4): Application to extend time

Answer 18

(4) An application for an order extending the time for compliance with rule 7.5 –
(a) must be supported by evidence; and
(b) may be made without notice.

Question 19

r20.7(5): Procedure for making other additional claims

Answer 19

(1) This rule applies to any additional claim except
(a) a counterclaim only against an existing party; and
(b) a claim for contribution or indemnity made in accordance with rule 20.6.

(2) An additional claim is made when the court issues the appropriate claim form.

(3) A defendant may make an additional claim –
(a) without the court’s permission if the additional claim is issued before or at the same time as he files his defence;
(b) at any other time with the court’s permission.

(4) Particulars of an additional claim must be contained in or served with the additional claim.
(5) An application for permission to make an additional claim may be made without notice, unless the court directs otherwise.

Question 20

PD23 para 2.10: If not enough time to serve application notice

Answer 20

Where a date for a hearing has been fixed and a party wishes to make an application at that hearing but he does not have sufficient time to serve an application notice he should 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. He should then make the application orally at the hearing.

Question 21

r23.3: Application notice

Answer 21

(1) The general rule is that an applicant must file an application notice.

(2) An applicant may make an application without filing an application notice if –
(a) this is permitted by a rule or practice direction; or
(b) the court dispenses with the requirement for an application notice.

Question 22

r23.6: What’s in an application notice

Answer 22

An application notice must state –

(a) what order the applicant is seeking; and
(b) briefly, why the applicant is seeking the order.

(Part 22 requires an application notice to be verified by a statement of truth if the applicant wishes to rely on matters set out in his application notice as evidence)

Question 23

PD23A para 2.1: Application must include

Answer 23

An application notice must, in addition to the matters set out in rule 23.6, be signed and include:

(1) the title of the claim,
(2) the reference number of the claim,
(3) the full name of the applicant,
(4) where the applicant is not already a party, his address for service, including a postcode. Postcode information may be obtained from www.royalmail.com or the Royal Mail Address Management Guide, and
(5) either a request for a hearing or a request that the application be dealt with without a hearing.

(Practice Form N244 may be used.)

Question 24

r25.3: How to apply for interim remedy

Answer 24

(1) The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.
(2) An application for an interim remedy must be supported by evidence, unless the court orders otherwise.

(3) If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given.
(Part 3 lists general powers of the court)
(Part 23 contains general rules about making an application)

Question 25

r39.2: Hearing in public/private

Answer 25

(1) The general rule is that a hearing is to be in public.
(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

(3) A hearing, or any part of it, may be in private if –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or
(g) the court considers this to be necessary, in the interests of justice.

(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.

Question 26

r23.9: service of application without notice

Answer 26

(1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice.

(2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person –
(a) against whom the order was made; and
(b) against whom the order was sought.

(3) The order must contain a statement of the right to make an application to set aside or vary the order under rule 23.10.

Question 27

PD23A para 2.3: If request for application without hearing

Answer 27

On receipt of an application notice containing a request that the application be dealt with without a hearing, the application notice will be sent to a Master or district judge so that he may decide whether the application is suitable for consideration without a hearing.

Question 28

PD 23A para 9.4: If evidence has not yet been served an respondent wants to rely on it

Answer 28

Where a respondent to an application wishes to rely on evidence which has not yet been served he should serve it as soon as possible and in any event in accordance with any directions the court may have given.

Question 29

PD 58 para 13.1: General requirement for evidence for applications

Answer 29

The general requirement is that, unless the court orders otherwise

(1) evidence in support of an application must be filed and served with the application (see rule 23.7(3));
(2) evidence in answer must be filed and served within 14 days after the application is served; and
(3) evidence in reply must be filed and served within 7 days of the service of evidence in answer.

Question 30

r23.8: Applications without a hearing

Answer 30

The court may deal with an application without a hearing if –

(a) the parties agree as to the terms of the order sought;
(b) the parties agree that the court should dispose of the application without a hearing, or
(c) the court does not consider that a hearing would be appropriate.

Question 31

r3.1(1) and (2): General powers of management

Answer 31

(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2) Except where these Rules provide otherwise, the court may –
(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);
(b) adjourn or bring forward a hearing;
(c) require a party or a party’s legal representative to attend the court;
(d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;
(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
(f) stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;
(g) consolidate proceedings;
(h) try two or more claims on the same occasion;
(i) direct a separate trial of any issue;
(j) decide the order in which issues are to be tried;
(k) exclude an issue from consideration;
(l) dismiss or give judgment on a claim after a decision on a preliminary issue;
(ll) order any party to file and exchange a costs budget;
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

Question 32

PD23A para 4.1-4.2: Giving notice of application

Answer 32

4. 1 Unless the court otherwise directs or paragraph 3 or paragraph 4.1A of this practice direction applies the application notice must be served as soon as practicable after it has been issued and, if there is to be a hearing, at least 3 days before the hearing date (rule 23.7(1)(b)).
5. 1A Where there is to be a telephone hearing the application notice must be served as soon as practicable after it has been issued and in any event at least 5 days before the date of the hearing.
6. 2 Where an application notice should be served but there is not sufficient time to do so, informal notification of the application should be given unless the circumstances of the application require secrecy.

Question 33

PD23A para 6.1: definition in regards to telephone hearings

Answer 33

In this paragraph –
(a) ‘designated legal representative’ means the applicant’s legal representative (if any), or the legal representative of such other party as the court directs to arrange the telephone hearing; and
(b) ‘telephone conference enabled court’ means –
(i) a district registry of the High Court; or
(ii) a county court,
in which telephone conferencing facilities are available.

Question 34

PD23A para 6.11-6.13: Documents to be filed for telephone hearing

Answer 34

6.11 Where a document is required to be filed and served the party or the designated legal representative must do so no later than 4pm at least 2 days before the hearing.

6. 12 A case summary and draft order must be filed and served in –
   (a) multi-track cases; and
   (b) small and fast track cases if the court so directs.

6.13 Any other document upon which a party seeks to rely must be filed and served in accordance with the period specified in paragraph 6.11.

Question 35

PD23A para 6.10: Directions related to telephone hearing

Answer 35

If an application is to be heard by telephone the following directions will apply, subject to any direction to the contrary –

(1) The designated legal representative is responsible for arranging the telephone conference for precisely the time fixed by the court. The telecommunications provider used must be one on the approved panel of service providers (see Her Majesty’s Courts and Tribunals Service website)
(2) The designated legal representative must tell the operator the telephone numbers of all those participating in the conference call and the sequence in which they are to be called.
(3) It is the responsibility of the designated legal representative to ascertain from all the other parties whether they have instructed counsel and, if so, the identity of counsel, and whether the legal representative and counsel will be on the same or different telephone numbers.

(4) The sequence in which they are to be called will be –
(a) the designated legal representative and (if on a different number) his counsel;
(b) the legal representative (and counsel) for all other parties; and
(c) the judge.

(5) Each speaker is to remain on the line after being called by the operator setting up the conference call. The call shall be connected at least ten minutes before the time fixed for the hearing.
(6) When the judge has been connected the designated legal representative (or his counsel) will introduce the parties in the usual way.
(7) If the use of a ‘speakerphone’ by any party causes the judge or any other party any difficulty in hearing what is said the judge may require that party to use a hand held telephone.
(8) The telephone charges debited to the account of the party initiating the conference call will be treated as part of the costs of the application.

Question 36

PD23A para 6.9: telephone hearing in person

Answer 36

No party, or representative of a party, to an application being heard by telephone may attend the judge in person while the application is being heard unless every other party to the application has agreed that he may do so.

Question 37

r3.3: Power to make orders of own initiative

Answer 37

(1) Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.

(2) Where the court proposes to make an order of its own initiative –
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made.

(3) Where the court proposes –
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.

(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

(5) Where the court has made an order under paragraph (4) –
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.

(6) An application under paragraph (5)(a) must be made –
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

(7) If the court of its own initiative strikes out a statement of case or dismisses an application,
(including an application for permission to appeal or for permission to apply for judicial review) and it considers that the claim or application is totally without merit –
(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 38

PD28 para 4.2(2): Fast track - making application to vary directions

Answer 38

(1) It is essential that any party who wishes to have a direction varied takes steps to do so as soon as possible.
(2) The court will assume for the purposes of any later application that a party who did not appeal and who made no application to vary within 14 days of service of the order containing the directions was content that they were correct in the circumstances then existing.

Question 39

PD39A para 1.10: If public hearing in judge’s room

Answer 39

Where there is no such sign on the door of the court or judge’s room, members of the public will be admitted where practicable. The judge may, if he thinks it appropriate, adjourn the proceedings to a larger room or court.

Question 40

PD23A para 2.9: Preparation related to case as a whole

Answer 40

The parties must anticipate that at any hearing the court may wish to review the conduct of the case as a whole and give any necessary case management directions. They should be ready to assist the court in doing so and to answer questions the court may ask for this purpose.

Question 41

PD23A para 8: Note of the proceedings

Answer 41

The procedural judge should keep, either by way of a note or a tape recording, brief details of all proceedings before him, including the dates of the proceedings and a short statement of the decision taken at each hearing.

Question 42

r32.7: Cross examination when not a trial

Answer 42

(1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence.
(2) If the court gives permission under paragraph (1) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.

Question 43

r23.11: Power to proceed in absence of a party

Answer 43

(1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence.

(2) Where –
(a) the applicant or any respondent fails to attend the hearing of an application; and
(b) the court makes an order at the hearing,
the court may, on application or of its own initiative, re-list the application.

(Part 40 deals with service of orders)

Question 44

PD44 para 9.2: Timing of summary assessment of costs

Answer 44

The general rule is that the court should make a summary assessment of the costs –

(a) at the conclusion of the trial of a case which has been dealt with on the fast track, in which case the order will deal with the costs of the whole claim; and
(b) at the conclusion of any other hearing, which has lasted not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim,

unless there is good reason not to do so, for example where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.

Question 45

r44.7: Time for complying with costs order

Answer 45

(1) A party must comply with an order for the payment of costs within 14 days of –

(a) the date of the judgment or order if it states the amount of those costs;
(b) if the amount of those costs (or part of them) is decided later in accordance with Part 47, the date of the certificate which states the amount; or
(c) in either case, such other date as the court may specify.

(Part 47 sets out the procedure for detailed assessment of costs.)

Question 46

PD44 para 9.5: Duties of parties/legal representatives in assessing costs

Answer 46

(1) It is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs in any case to which paragraph 9.2 above applies, in accordance with the following subparagraphs.

(2) Each party who intends to claim costs must prepare a written statement of those costs showing separately in the form of a schedule –
(a) the number of hours to be claimed;
(b) the hourly rate to be claimed;
(c) the grade of fee earner;
(d) the amount and nature of any disbursement to be claimed, other than counsel’s fee for appearing at the hearing;
(e) the amount of legal representative’s costs to be claimed for attending or appearing at the hearing;
(f) counsel’s fees; and
(g) any VAT to be claimed on these amounts.

(3) The statement of costs should follow as closely as possible Form N260 and must be signed by the party or the party’s legal representative. Where a party is –
(a) an assisted person;
(b) a LSC funded client;
(c) a person for whom civil legal services … are provided under arrangements made for the purposes of that Part of that Act; or
(d) represented by a person in the party’s employment,
the statement of costs need not include the certificate appended at the end of Form N260.

(4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –
(a) for a fast track trial, not less than 2 days before the trial; and
(b) for all other hearings, not less than 24 hours before the time fixed for the hearing.

Question 47

PD44, para 9.7: Summary assessments by costs officers

Answer 47

The court awarding costs cannot make an order for a summary assessment of costs by a costs officer. If a summary assessment of costs is appropriate but the court awarding costs is unable to do so on the day, the court may give directions as to a further hearing before the same judge.

Question 48

PD44, para 9.4: Costs in consent orders

Answer 48

Where an application has been made and the parties to the application agree an order by consent without any party attending, the parties should seek to agree a figure for costs to be inserted in the consent order or agree that there should be no order for costs

Question 49

PD44, para 9.8: Costs assessments for assisted persons

Answer 49

The court will not make a summary assessment of the costs of a receiving party who is an assisted person or LSC funded client or who is a person for whom civil legal services (within the meaning of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) are provided under arrangements made for the purposes of that Part of that Act.

Question 50

PD44, para 9.9: costs assessments for protected party

Answer 50

(1) The court will not make a summary assessment of the costs of a receiving party who is a child or protected party within the meaning of Part 21 unless the legal representative acting for the child or protected party has waived the right to further costs (see Practice Direction 46 paragraph 2.1).
(2) The court may make a summary assessment of costs payable by a child or protected party.

Question 51

r23.10: Application to set aside/vary order made without notice

Answer 51

(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside or varied.
(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

Question 52

r6.2 and 6.3: When telephone hearings conducted

Answer 52

Subject to paragraph 6.3, at a telephone conference enabled court the following hearings will be conducted by telephone unless the court otherwise orders –

(a) allocation hearings;
(b) listing hearings; and
(c) interim applications, case management conferences and pre-trial reviews with a time estimate of no more than one hour.

6. 3 Paragraph 6.2 does not apply where –
   (a) the hearing is of an application made without notice to the other party;
   (b) all the parties are unrepresented; or
   (c) more than four parties wish to make representations at the hearing (for this purpose where two or more parties are represented by the same person, they are to be treated as one party).

Question 53

PD23A para 9.1: Evidence requirements for applications

Answer 53

The requirement for evidence in certain types of applications is set out in some of the rules and practice directions. Where there is no specific requirement to provide evidence it should be borne in mind that, as a practical matter, the court will often need to be satisfied by evidence of the facts that are relied on in support of or for opposing the application.

Question 54

r22.1: Statement of truth

Answer 54

(1) The following documents must be verified by a statement of truth –
(a) a statement of case;
(b) a response complying with an order under rule 18.1 to provide further information;
(c) a witness statement;
(d) an acknowledgement of service in a claim begun by way of the Part 8 procedure;
(e) a certificate stating the reasons for bringing a possession claim or a landlord and tenant claim in the High Court in accordance with rules 55.3(2) and 56.2(2);
(f) a certificate of service; and
(g) any other document where a rule or practice direction requires.

(2) Where a statement of case is amended, the amendments must be verified by a statement of truth unless the court orders otherwise.
(3) If an applicant wishes to rely on matters set out in his application notice as evidence, the application notice must be verified by a statement of truth.

(4) Subject to paragraph (5), a statement of truth is a statement that –
(a) the party putting forward the document;
(b) in the case of a witness statement, the maker of the witness statement; or
(c) in the case of a certificate of service, the person who signs the certificate,
believes the facts stated in the document are true.

(5) If a party is conducting proceedings with a litigation friend, the statement of truth in –
(a) a statement of case;
(b) a response; or
(c) an application notice,
is a statement that the litigation friend believes the facts stated in the document being verified are true.

(6) The statement of truth must be signed by –
(a) in the case of a statement of case, a response or an application –
(i) the party or litigation friend; or
(ii) the legal representative on behalf of the party or litigation friend; and
(b) in the case of a witness statement, the maker of the statement.

(7) A statement of truth which is not contained in the document which it verifies, must clearly identify that document.

(8) A statement of truth in a statement of case may be made by –
(a) a person who is not a party; or
(b) by two parties jointly,
where this is permitted by a relevant practice direction.

Question 55

r32.6: Evidence in proceedings other than trial

Answer 55

(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.

(2) At hearings other than the trial, a party may, rely on the matters set out in –
(a) his statement of case; or
(b) his application notice, if the statement of case or application notice is verified by a statement of truth.

Question 56

PD22 para 2.1: Form of statement of truth for an application

Answer 56

The form of the statement of truth verifying a statement of case, a response, an application notice or a notice of objections should be as follows:
‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true.’

Question 57

r23.7: Service of a copy of the application notice

Answer 57

(1) A copy of the application notice –
(a) must be served as soon as practicable after it is filed; and
(b) except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application.

(2) If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.

(3) When a copy of an application notice is served it must be accompanied by –
(a) a copy of any written evidence in support; and
(b) a copy of any draft order which the applicant has attached to his application.

(4) If –
(a) an application notice is served; but
(b) the period of notice is shorter than the period required by these Rules or a practice direction,
the court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.

(5) This rule does not require written evidence –
(a) to be filed if it has already been filed; or
(b) to be served on a party on whom it has already been served.

Question 58

r32.2: Evidence of witnesses

Answer 58

(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –
(a) at trial, by their oral evidence given in public; and
(b) at any other hearing, by their evidence in writing.

(2) This is subject –
(a) to any provision to the contrary contained in these Rules or elsewhere; or
(b) to any order of the court.

(3) The court may give directions –
(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements.

Question 59

r32.15: Affidavit evidence

Answer 59

(1) Evidence must be given by affidavit instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment.
(2) Nothing in these Rules prevents a witness giving evidence by affidavit at a hearing other than the trial if he chooses to do so in a case where paragraph (1) does not apply, but the party putting forward the affidavit may not recover the additional cost of making it from any other party unless the court orders otherwise.

Question 60

PD32 para 1.7: Reference to affirmation

Answer 60

An affidavit, where referred to in the Civil Procedure Rules or a practice direction, also means an affirmation unless the context requires otherwise.

Question 61

PD23A para 9.6: What to do with evidence for applications

Answer 61

Evidence must be filed with the court as well as served on the parties. Exhibits should not be filed unless the court otherwise directs.

Question 62

PD23A para 12.1: Draft orders

Answer 62

12.1 Except in the most simple application the applicant should bring to any hearing a draft of the order sought. If the case is proceeding in the Royal Courts of Justice and the order is unusually long or complex it should also be supplied on disk for use by the court office.

Question 63

r6.21(1): Who serves documents

Answer 63

(1) Subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction …, a party to proceedings will serve a document which that party has prepared except where –
(a) a rule or practice direction provides that the court will serve the document; or
(b) the court orders otherwise.

(2) The court will serve a document which it has prepared except where –
(a) a rule or practice direction provides that a party must serve the document;
(b) the party on whose behalf the document is to be served notifies the court that the party wishes to serve it; or
(c) the court orders otherwise.

(3) Where the court is to serve a document, it is for the court to decide which method of service is to be used.
(4) Where the court is to serve a document prepared by a party, that party must provide a copy for the court and for each party to be served.