DR 8 - Interim applications

Question 1

General: What are interim applications?

Answer 1

applications for orders or directions made to the court, usually in the interim period between the claim and commencement of proceedings.

Question 2

General: When should an interim application be made?

Answer 2

As soon as it becomes apparent that it is necessary or desirable to make an application.

Parties are under an obligation to ‘bunch’ their applications

Question 3

General: How does the interim application process start?

Answer 3

the applicant files an application notice at court which states:

• Who is making the application 👀
• What the applicant wants 🎁
• Why the applicant is applying for the order 🤷‍♀️
• What information the applicant relies on in support of the application. 📑
• draft order 📝
• court fee 💰

Question 4

General: Who is an interim application made to?

Answer 4

The court in which the main case is being heard/likely to be heard.

Question 5

General: What happens after an interim application is made?

Answer 5

Service is made on the respondent including:
- Application notice
- Supporting evidence
- Draft Order
- Notice of hearing date 👂📆

Question 6

General: What happens after the court issues the interim application?

Answer 6

The application must be served on the other party by either the court or the applicant.

Question 7

General: When must the application be served?

Answer 7

Service must be effected as soon as reasonable practicable after the application and not less than 3 clear days before the application is to be heard.

Question 8

General: Once an application is served, what does the respondent do and when?

Answer 8

• they may wish to file evidence in the form of a witness statement
• as soon as possible

Question 9

General: Can the applicant respond to the respondent’s evidence? If so, when?

Answer 9

• Yes, the applicant can bring further evidence.
• as soon as possible

Question 10

General: When should a statement of costs in relation to an application be made?

Answer 10

• not less than 24 hours before the hearing.

Question 11

General: When can an interim application be dealt with in the absence of a hearing?

Answer 11

• The parties have agreed the terms of the order
• The parties agree that there should be no hearing
• The court does not consider a hearing appropriate

Question 12

General: What happens after the hearing for an interim application?

Answer 12

The court will make its decision and the order will be drawn up, sealed and served by the court.

Question 13

Without Notice: When can a ‘without notice’ application for an interim order be made?

Answer 13

• there is exceptional urgency 🚨
• the overriding objective is best furthered by doing so. 🤫
• all parties consent 🤝
• the court gives permission 👨‍⚖️
• a court order, rule or practice direction permits, or 🇬🇧
• a date for the hearing has been fixed, a party wishes to make an application at that hearing, and the party does not have sufficient time to serve an application notice. The party should still inform the other party and court as soon as is possible. 🕰️

Question 14

Without Notice: What are the safeguards for without notice hearings?

Answer 14

• the applicant must explain why no notice is given. 🤷‍♀️🤫
• the applicant must provide evidence in support of the respondent’s position. 📑
• the applicant must serve the respondent as soon as possible 📮after the hearing whether or not the court has granted the relief sought including:-
  a) the application notice 📝
  b) the evidence in support 📑
  c) the order 👨‍⚖️
• the court order must contain a statement of the respondent’s right to make an application to set aside or vary the order. 🫵

Question 15

Without Notice: When must the respondent in a without notice interim application make an application to set aside or vary an order made?

Answer 15

within 7 days of the order being served.

Question 16

Summary Judgement: Who can apply for a summary judgement?

Answer 16

Either party

Question 17

Summary Judgement: In what circumstance can the court give a summary judgement?

Answer 17

• no real prospect of success 🚮
  AND
• no other compelling reason why should go to trial 🤷‍♀️

Question 18

Summary Judgement: What must be included in an application for summary judgement?

Answer 18

• the evidence supporting the application 📑
• any point of law/provision in a document on which the claimant relies👇
  AND
• state that the respondent has no real prospect of success 🚮

AND

• knows no compelling reason why the claim / issue should proceed to trial 🤷‍♀️.

Question 19

Summary Judgement: Who can apply for summary judgement and when?

Answer 19

• Claimant - after D has served an acknowledgement of service or defence (can be earlier with courts permission).
• Defendant - any time after proceedings have commenced.
• Court - can fix a hearing on its own initiative.

Question 20

Summary Judgement: What is the affect of a summary judgement application on timings?

Answer 20

effectively pauses the proceedings
- if the claimant applies before the defendant has served a defence, the time for the defendant to file a defence is extended until after the hearing.
- if the defendant applies, the defendant does not have to file either an acknowledgement of service or a defence until after the summary judgement hearing.

Process for summary hearings is:

• Service must be at least 14 days before the hearing.
• The Respondent must file at court and service on the applicant their evidence at least 7 days before the hearing.
• The applicant must file at court and serve on the respondent their evidence in reply at least 3 days before the hearing.
• Both parties must file and exchange a statement of costs 24 hours before the hearing.

Question 21

Summary Judgement: What must the application for a summary judgement include?

Answer 21

• a statement that it is an application for summary judgement; and
• direct the respondent’s attention to the CPR which requires tha respondent to file and serve any evidence at least 7 days before the summary judgement hearing.

Question 22

Summary Judgement: What orders can be made following a summary judgement application?

Answer 22

• Dismissal of the application - continue to trial
• Conditional order - respondent may win, but unlikely, court allows case to continue subject to conditions ordered by the court such as paying in a sum of money to court.
• Dismissal of the original claim - If D applies & succeeds then claim is dismissed and defendant has won.
• Judgement on the original claim - if C applies & succeeds then judgement is entered for the claimant and he has won.

Question 23

Interim Payment: What is an interim payment?

Answer 23

a payment on account of damages, debt or other sum (except costs) which a defendant may be held liable to pay to a claimant.

Question 24

Interim Payment: What are the conditions for an order of interim payments to be made?

Answer 24

• The defendant has admitted liability to pay damages.
• The claimant has obtained a judgement against the defendant for damages to be assessed.
• It is satisfied that, if the claim went to trial, the claimant would obtain judgement for a substantial amount of money against the defendant, whether or not the defendant is the only defendant.

Question 25

Interim Payment: What evidence is required in an application for an interim payment?

Answer 25

• the reasons why the conditions for making an interim payment are satisfied. 🤷‍♀️
• The sum of money for which final judgement will be given,🎁
• The sum of money sought by way of an interim payment,💰
• The items or matters in respect of which the interim payment is sought,📝
• Any document in support of the claim.📑
• Any other relevant matters,

Question 26

Interim Payment: What additional evidence is required for an interim payment relating to PI?

Answer 26

• details of the special damages and past and future loss, and
• in fatal accidents, details of the person(s) on whose behalf the claim is made and the nature of the claim.
• Any documents in support of the claim including medical reports.

Question 27

Interim Payment: What is the procedure for an interim payment?

Answer 27

• claimant should request voluntary payment first. Can do this at any time.
  🤗

Same rules as for summary judgements apply.

• Service must be at least 14 days before the hearing.
• The Respondent must file at court and service on the applicant their evidence at least 7 days before the hearing.
• The applicant must file at court and serve on the respondent their evidence in reply at least 3 days before the hearing.
• Both parties must file and exchange a statement of costs 24 hours before the hearing.

Question 28

Interim Payment: When is the earliest that the claimant can apply to the court for an interim payment?

Answer 28

The end of the period for the defendant filing an acknowledgement of service.

Question 29

Interim Payment: Can the claimant make more than one application for an interim payment order?

Answer 29

Yes

Question 30

Interim Payment: Will an interim payment be disclosed to the trial judge

Answer 30

No, not until all questions of questions and quantum of liability have been decided.

Question 31

Interim Payment: How much will an interim payment order be for?

Answer 31

No more that a reasonable proportion of the likely amount of the final judgement, taking into account any contributory negligence, set off or counterclaim.

Question 32

Security of Costs: What is the purpose of security for costs?

Answer 32

an application made by the DEFENDANT who is concerned that the claimant will not be willing / able to pay the defendant’s costs.

Question 33

Security of Costs: Who can make an application for security for costs?

Answer 33

• A defendant against a claimant

-A claimant against a defendant in respect of a counterclaim

-A third party against a defendant in respect of a Part 20 additional claim

Question 34

Security of Costs: What are the grounds for security of costs?

Answer 34

• One or more of the prescribed conditions in the rules are satisfied. ⛔️
  AND
• Having regard to all of the circumstances of the case, it is just to make an order ⚖️

Question 35

Security of Costs: What else will the court consider?

Lindsay Parkinson v Triplan

Answer 35

• Admission of liability by defendant
• Delay
  will make less likely to succeed.
• Claim appears not to be genuine claim or has little prospect of success
• If the defendant has been responsible for the claimant’s financial difficulties
  will made defendant’s claim for security more likely to succeed.

Question 36

Security of Costs: What are the prescribed conditions for security of costs?

Answer 36

• the claimant is resident outside of the jurisdiction 🌎 (but is not resident in a state bound by the Hague Convention)
  [individual = habitual abode]
  [company = CM&C]
• The claimant is a company and there is reason to believe it will be unable to pay the costs if ordered to do so. 🏭
  [must show WILL be unable to pay costs AND the amount of likely costs]
• The claimant has taken steps in relation to its assets that would make enforcement of a costs order difficult. 👣🦹‍♂️
• The claimant has changed address since the claim has commenced with a view to evading the consequences of litigation.🏠
• The claimant failed to give an address on the claim form. 💌
• Claimant is acting as a nominal claimant and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so.🥸

Question 37

Security of Costs: What is the procedure for security of costs?

Answer 37

Normal rules apply, plus:

• application notice should state which grounds apply.
• application must be supported by written evidence which should cover;
  a) the grounds, 🪧
  b) factors in the court’s discretion, ⚖️
  c) the likely costs to trial 💰
  d) the amount of security requested💵

Question 38

Security of Costs: Who sets the amount of security if the claim is successful?

Answer 38

The court has full discreation

Question 39

Security of Costs: What forms can the security take?

Answer 39

• A payment into court. 🧑‍⚖️
• A payment to the defendant’s solicitor 🧑‍💼
• A bank guarantee 🏦
• An undertaking to pay costs 📝

Question 40

Interim Injunction: What is the purpose of an interim injunction?

Answer 40

it is an order of the court requiring a party to do or refrain from doing a given act.

Question 41

Interim Injunction: How is a breach of an interim injunction punishable?

Answer 41

A breach of an injunction is punishable as contempt of court, so fine or inprisonment.

Question 42

Interim Injunction: Can an injunction be taken out pre-action?

Answer 42

Yes

Question 43

Interim Injunction: What types of interim injunction are there?

Answer 43

• Prohibitory injunction - Requires the respondent to refrain from doing an act.✋
• Mandatory injunction - Requires the respondent to do a specific act.🫵
• Quia timet Injunction - allows both prohibatory and mandatory injunctions where a wrong has been threatened but not yet committed.

Question 44

Interim Injunction: What are the factors when the court considers whether an interim injunction should be granted

Answer 44

Where it is just and convenient:

1) is there a serious question to be tried? ⚖️

2) Would damages be an adequate remedy? 💵
a) first consider whether damages adequate for claimant
b) then consider whether damages adequate for respondent,
3) if not, then consider balance of convenience ⚖️

Question 45

Interim Injunction: What are the equitable considerations when considering an interim injunction?

Answer 45

An injunction is a discretionary remedy:

• practical purpose - an injunction will not be obtained where it would serve no practical purpose. 👷
• clean hands - the court might refuse an injunction if the applicant has not come to court with clean hands. 🤲
• delay - Excessive delay may lead to a refusal of the application. ⏱️

Question 46

Interim Injunction: What is are the requirements of an interim injunction application?

Answer 46

• Must be supported by written evidence setting out the facts to justify the relief sought.
• if made without notice, the evidence must state the reason why notice has not been given.

Question 47

Interim Injunction: What are the safeguards for an application for an interim injunction beyond the standard process?

Answer 47

• cross-undertaking.
• Without notice safeguards.
• timing of claim form when application before a claim is issued.

Question 48

Interim Injunction: What is a cross-undertaking for an interim injunction?

Answer 48

Applicant often required to offer a cross-undertaking to pay damages to the court for any loss sustained by reason of the injunction by the respondent or others if it is found that the applicant ought not to have been granted the injunction.

Question 49

Interim Injunction: What are the safeguards for a ‘without notice’ interim injunction?

Answer 49

Injunction granted for a fixed period with a second hearing called the return date. The respondent will be given notice of that hearing and the opportunity to attend it to make representations. The court may make the following orders:

• Maintain the order
• Discharge/vary the terms of the injunction
• Enforce the applicant’s undertaking in damages if the injunction should not have been granted.
• Accept an undertaking by the respondent not to do the acts in question in place of the injunction.

Question 50

Interim Injunction: What obligation is there on a claimant when an interim injunction before claim is made?

Answer 50

The claimant must undertake to issue the claim form immediately

Question 51

Interim Injunction: What further obligations are placed on the applicant for a without notice interim injunction?

Answer 51

• must make full and frank disclosure 😇
• must prepare a full note of the hearing as soon as possible and this should be served on the respondent without delay. 📝📮

Question 52

Interim Injunction: When can an interim injunction be granted?

Answer 52

Where it is just and convenient:

1) is there a serious question to be tried?

2) Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?

3) where does the balance of convenience lie?
- first claimant is considered,
- the defendant is considered,
- then balance of convenience considered.

Question 53

If an unless order is made stating that a case will be dismissed unless something is done, what is required after that thing isn’t done by the innocent party?

Answer 53

Nothing, the case is automatically dismissed.

Question 54

If an unless order is made stating that a case will be dismissed unless something is done, what is required after that thing isn’t done by the party at fault?

Answer 54

Must apply for relief from sanctions or else case will be dismissed