Dispute Resolution 5: Interim Applications

Question 1

When (time frame) should an applicant make an interim application?

Answer 1

• as soon as it is apparent that it is necessary and desirable
• if possible should be made and heard at any hearing already listed (eg. CMC)

Question 2

To whom should an interim application be made? Who will typically hear it?

Answer 2

• to the court where the action is proceeding (trail court if trial is fixed)

Heard By
- typically comes before a Master (high court), or
- District Judge (other cases)

Question 3

What are the formalities for applying for an interim application?

Answer 3

• should give other party at least 3 days notice (5 if by phone) — EXCEPTIONS apply
• all evidence relied on should be in writing and filed with court along with notice and required fee
• file and serve case summary and proposed draft order no later than 2 days before hearing

Question 4

When is an interim application treated as having been made?

Answer 4

Treated as having been made on the date on which the application notice and fee are received by the court

Question 5

When is notice for interim application not needed

Answer 5

Where giving notice of application is not appropriate by defeating the purpose of the application or creating an injustice.
- mainly for freezing orders and search orders

Question 6

What is the procedure needed for making interim application without notice? What must be done if order is made?

Answer 6

• Must include evidence explaining why notice was not given
• If order is made it must be served on defendant together with application notice and evidence

Question 7

What are the consequences of making an interim application without evidence by accident?

Answer 7

• court likely to dismiss; and
• make wasted cost order (meaning solicitor of applicant - not party - pay the other sides legal fees associated with applicant)

Question 8

Can a defendant apply to vary or set aside an order made without notice?

Answer 8

• yes they have 7 days after order was served

Question 9

What is an application for summary judgement and what must an applicant show to succeed?

Answer 9

Interim application that can be applied for at any time for court to enter judgement without proceeding to trial

Must show:
- other party has no real prospect of success; and
- there is no other compelling reason why the case should proceed

Question 10

What must be shown for an application to strike out a claim?

Answer 10

• the statement of case discloses no reasonable grounds for bringing or defending a claim
• statement of case is an abuse of the courts process; or
• there has been a failure to comply with a rule, practice direction or order

Question 11

What are the rules concerning evidence in an application for summary judgement?

Answer 11

• must serve written evidence on other party at least 14 days before hearing
• opposing party must serve evidence in response at least 7 days before hearing

Question 12

At what point in the process can an interim application for summary judgement be made?

Answer 12

• cannot make application until after acknowledgement of claim

Defendant does not need to serve defence before hearing if claimant has made application after acknowledgement (although may be good idea to)

Question 13

What happens if one party is successful with their application for summary judgement?

Answer 13

Claimant
- court will order summary judgement

Defendant
- court will likely strike out claim

Question 14

What will a court do if an application for summary judgement is not successful?

Answer 14

typically give directions for future conduct

Question 15

What does it mean if a court makes a conditional offer in response to application for summary judgement?

Answer 15

May:
- order a party to pay part of claim into court
- order party to take steps in the action within specified time

If not followed consequence may be:
- right to defend is lost

Question 16

What is an application for an interim payment? What are the grounds an application can be based on?

Answer 16

Interim Application for the court to order some payment before the court has given the final determination
- always discretionary, and cannot be done if doing so would cause injustice

Grounds
D has admitted liablity
- C has obtained judgement, but sum to be paid is yet to be assessed
- Court is satisfied that if action goes to trial, C would obtain judgement for substantial sum, or
- if against 2+ Ds, the court is satisfied that if action goes to trial, C would obtain judgement for substantial sum against at least one D and each D carries insurace

Question 17

What steps must an applicant make before applying to court for Interim Payment?

Answer 17

• should invite respondent to make an interim application before making application

Can only make application until time for filing acknowledgement of service has expired

Question 18

At what point in the process can an application for interim payment be made?

Answer 18

Can only make application until time for filing acknowledgement of service has expired

Question 19

What should the written evidence in an application for interim payment include?

Answer 19

• written supporting evidence
• the sum sought
• the matter for which it is sought
• an estimate of the expected judgement
• (in PI claims) a schedule of loss detailing both past and future loss

Question 20

What are the time limits for serving an application for interim payment?

Answer 20

application and written evidence served together
- no less than 14 days before hearing

Respondent must file its written evidence 7 days before hearing
- applicant can file response up to 3 days before hearing

Question 21

Does an applicant for interim payment have to show specific need for payment?

Answer 21

No - however good to add if urgent

Question 22

What might effect the amount an applicant might get for an applicant for interim payment?

Answer 22

Yes court will take any likelihood of contributory negligence, set-off or counterclaim into account when determining amount

Question 23

What happens if a party breaches an injunction given before or at trial?

Answer 23

May be held in contempt of court
- can mean 2 years in prison or sequestration (removal) of their asset

Question 24

When must a court grant an injunction?

Answer 24

Never - always at their discretion

Will only do so if damages are not adequate

Question 25

What is the process for applying for an interim injunction?

Answer 25

Must apply to court (eg telephone or out of hours)
- often without notice to other party
- Other party must be given notice if injunction is granted
- cannot be penalised for breaching injection unless they are given notice

Once Granted (without notice)
- injunction lasts until return date (which is when hearing takes place for defendant to challenge injunction)

Question 26

How can a defendant challenge to remove an interim injection? What are the grounds?

Answer 26

Can do so at the return date
- a hearing on the matter

Must make an application to a judge of the division in which claim is proceeding and give notice

Grounds
- material non-disclosure (not all relevant info was provided by applicant when seeking injunction)

• failure of the applicant to comply with terms on which injection was granted
• facts do not justify interim injunction
• injunction is oppressive
• there has been a material change in circumstance or law
• claimant has failed to prosecute the claim with due speed

Question 27

What are the rules for obtaining injection before proceedings commence?

Answer 27

• applicant must undertake to issue proceedings straight away

Question 28

What conditions might a court attach to granting an injunction?

Answer 28

Undertaking in damages
- applicant to give undertaking to compensate D for any loss suffered because of injection if court later decides it should not have been granted

Question 29

What might a defendant do instead of challenging an application for an interim injunction?

Answer 29

Can give undertaking that binds them in same way injection would (until hearing)

Claimant must then undertake to safeguard D in event that they do not succeed in obtaining injection at trial

Question 30

What are two common types of interim injunctions?

Answer 30

Freezing Injunctions
- freeze assets of D
- when there is risk that D may dispose of the subject assets or remove them from jurisdiction before claim proceeds to trial

Preservation of Property
- if it is clear D will not comply with rules of disclosure and may destroy evidence
- requires D to preserve evidence that may be relevant or is subject matter of proceedings

Search Orders
- if it is clear D will not comply with rules of disclosure and may destroy evidence
- can require D to allow C to search for and potentially seize evidence
- is last resort

Question 31

Requirements for applying for a Freezing Order?

Answer 31

Application to High Court (only)

No notice required

Grounds: court must be satisfied that:
- there is a justifiable cause of action
- C has a good, arguable case
- D has assets within the jurisdiction; and
- there is a real risk that D may dispose of or dissipate those assets before judgment can be enforced

Question 32

What conditions might a court require when grating a freezing order? What are the main components of the order?

Answer 32

C to give undertakings to:
- notify D of order
- inform 3rd parties of their right to apply for directions or variation
- indemnify 3rd party in respect of expenses incurred in complying and compensate for loss suffer

Order freezing assets:
- amount should not exceed max amount of claim
- order must state period of time for which order is to last

Question 33

Who is bound by a freezing order?

Answer 33

3rd parties that have knowledge of it

Question 34

What are the requirements for a defendant to apply to have Freezing Order discharged?

Answer 34

Defendant can apply for discharge if:
- they offer other security to C’s claim (ie payment into court); or
- show that C is guilty of material non-disclosure

Question 35

What are the grounds for applying for a Search Order / Preservation of Property Order?

Answer 35

• there must be a strong prima facie case on the merits of the underlying case;
• D’s activities must cause very serious potential or actual harm to C’s interests; and
• there must be clear evidence that the property or documents are in D’s possession and there is a real possibility that the material may be destroyed before an application can be made on notice.

Question 36

How is a Search Order / Preservation of Property Order carried out?

Answer 36

D must disclose whereabout of documents or property

Independent Supervising solicitor to oversee execution of order
- explain it to D and inform them of their right to seek legal advice and apply to vary or discharge order
- prepare a written report on execution of order and provide it to C’s solicitors

Claimant solicitor to undertake:
- to return original docs to D within 2 days
- to deliver any property disputed to D’s solicitor (to retain securely)
- to retain securely all other property until court directs otherwise

Question 37

What undertaking does claimants solicitor give for a Search Order / Preservation of Property Order

Answer 37

• to return original docs to D within 2 days
• to deliver any property disputed to D’s solicitor (to retain securely)
• to retain securely all other property until court directs otherwise