Interim applications? Flashcards
What is an interim application?
Applications for orders or directions made to court in the interim period between commencement of proceedings and trial.
But as soon as its clear it is necessary the party should apply. 23A PD 2.7
Some can be at the same time as the case management conferences, or at pre-trial review.
Parties are under an obligation to bunch their interim application, to ensure any outstanding matters get dealt with at a single hearing
EXAMPLES
extending the time period for taking a particular step in the proceedings (like filing a defence)
* applying to amend a statement of case
* requiring the other party to provide further information
* requesting specific disclosure of a document
Procedure - Issuing the application?
he party making the application, whether or not they are the claimant or defendant in the
proceedings, is called the applicant. The other party is the respondent.
The process of making an application begins by the applicant filing an application notice (Form
N244) at court. The application notice states (CPR 23.6):
(a) Who is making the application
(b) What order the applicant wants
(c) Why the applicant is asking for that order
(d) What information the applicant relies on in support of the application.
A court fee is payable to issue the application notice.
CPR sometimes mandates certain evidence, but best to attach it either
- in the application itself
- by referring to existing statements of case
-In a witness statement
ALSO ATTACH A DRAFT ORDER OF WHAT IT IS SEEKING
Procedure - serving?
The court on receiving the application, the draft order and the evidence and the fee will then provide a notice indicating the date and time of hearing of the application.
The applicant takes or sends to the court the application notice, evidence and draft order.
THESE ALL MUST BE SERVED ON THE OTHER PARTY AFTER IT HAS BEEN ISSUED BY THE COURT. AS SOON AS PRACTICABLE, AND NOT LESS THAN 3 CLEAR DAYS BEFORE THE APPLICATION IS TO BE HEARD.
A statement of costs in relation to the application should also be filed and exchanged not less
than 24 hours before the hearing (44 PD 9.5).
RESPONDENT FILES AT COURT AND SERVES ON APPLICANT EVEIDENCE AS SOON AS POSSIBLE
APPLICANT FILES AT COURT AND SERVES ON RESPONDENT EVIDENCE AS SOON AS POSSIBLE IN REPLY.
Procedure - hearing?
Most interim applications are dealt with at a hearing.
In accordance with the overriding objective, the court may order that a hearing should take place
by telephone (23A PD 6 and 7), most commonly if the hearing is expected to last no more than on
hour, or exceptionally by video conference.
It is, however, possible for matters to be dealt with in the absence of a hearing if (CPR 23.8):
* The parties have agreed the terms of the order (in which case they should send in a ‘consent
order’ – a order in the agreed form, signed on behalf of each party);
* The parties agree there should be no hearing; or
* The court does not consider a hearing appropriate.
Once the court has considered the application, the court will make its decision and the order will
be drawn up, sealed and served by the court.
The normal ‘on notice’ procedure is what normally occurs. There are also without notice applciations?
An alternative procedure is to make an application ‘without notice’ – without serving the
application notice on the respondent. This is permitted only if (23A PD 3):
(a) there is exceptional urgency (for example, a remedy is needed immediately);
(b) the overriding objective is best furthered by doing so;
(c) all parties consent;
(d) the court gives permission;
(e) a court order, rule or practice direction permits; or
(f) a date for a 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. In this case, the
party should still inform the other party and the court (if possible in writing) as soon as
possible of the nature of the application and the reason for it.
Procedural safeguards - without notice safeguards?
Procedural safeguards
To mitigate risk of unfairness
a) Applicant must explain why no notice was given
b) Must draw to the court’s attention arguments and evidence in support of the respondent’s position
c) Applicant must serve the respondent asap, whether or not the court has granted the relief sought. The documents the applicant must serve on respondent are
a. Application notice
b. Evidence in support
c. The order
d) Court order must contain a stamen of the respondents right to make an application to set aside or vary the order. Any application to set aside must be made within 7 days of the order being served on the other party
Interim payments?
payment on account of damages, debt or another sum (not costs) which a defendant may be held liable to pay claimant
A claimant may ask for an interim payment to assist financially in the interim period prior to settlement/trial.
Conditions for interim payments?
The court will only make an order where any of the following conditions are satisfied:
* The defendant has admitted liability to pay damages (or some other sum of money) to the
claimant.
* The claimant has obtained judgment against that defendant for damages to be assessed (or
for a sum of money other than costs) to be assessed.
* It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a
substantial amount of money against the defendant from whom he is seeking an order for an
interim payment, whether or not that defendant is the only defendant or one of a number of
defendants to the claim.
APPLICANT MUST PROVIDE EVIDENCE ALONGSIDE APPLICATION
-The reasons for believing that the conditions for making an interim payment are satisfied;
* The sum of money for which final judgment is likely to 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 other relevant matters;
Procedure for an interim payment?
SERVICE OF APPLCIATION MUST BE SERVED AT LEAST 14 DAYS BEFORE THE HEARING
A claimant seeking an interim payment would make a request for a voluntary payment from the
defendant first. If the defendant does not agree, for example if it is defending the claim, the
claimant would make an application to the court for an interim payment (CPR 25.7)
Although the claimant can make a request to the defendant for a voluntary interim payment at
any stage in the proceedings (including pre-action), the claimant cannot apply to the court for an
interim payment before the end of the period for the defendant filing an acknowledgment of
service (CPR 25.6(1)).
The court must not make an interim payment of more than a reasonable proportion of the likely
amount of the final judgment, taking into account any contributory negligence, set-off or
counterclaim – (CPR 25.7). It may order payment in instalments.
Security for costs?
an application made by a person in the position of defendant, who is concerned that the claimant will not be willing to pay defendants cost would claim be successfully defended
This applies solely to the costs of the claim, it can be made:
* By a defendant against claimant
* By a claimant against a defendant in respect of a counter claim
* By a third party against a defendant in respect of an additional claim
Grounds for security of costs?
Defendants must satisfy the court of two matters before an order for security of costs can be made
* Having regard to a; the circumstances of the case, it is JUST to make an order
* One or more of the prescribed conditions in the rules are satisfied
* As with any interim application the court will consider the overriding objective and therefore whether it would be dealing with the case justly and at a proportionate cost by making a security for costs order.
Conditions:
* The claimant is resident out of the judication
o Meaning of resident is an individual this is their habitual or normal residence for a company this is where the company central management and control is exercised.
o Meaning out of jurisdictional not in England and Wales – rationale is D may have difficulty enforcing it, security for costs is not available under this ground BUT NOT A resident is in a state bound by the 2005 Hauge convention, which included the UK, all EU member states, Mexico, Singapore and Montenegro.
- The claimant is a company and there is reason to believe it will be unable to pay the defendants cost if ordered to do so
o Impecunious claimant company condition
o D must should the company’s inability to pay costs AND the amount of the likely costs. D must show company WILL be unable as opposed to MAY BE UNABLE to pays it debt when the order is made against them.
o Does not have to show probabilities of unlikelihood but show there is reason to believe can adduce substantial evidence to the contrary.
- The claimant has taken steps in relation to tis assets that would make enforcement of a costs order against it difficult
o Its to prevent injustice where the assets available to enforce any order for costs have been or are being put beyond the reach of enforcement. - The claimant has changed address ince claims was commenced with a view of evading consequences of litigation
- Claimant has failed to give an address in the claim form
- Claimant is acting as a nominal claimant and there is reason to believe it will be able to pay Ds costs
Courts discretion with security for costs?
Even if one of the conditions is and out the court only has to take into account and are not obliged to give security
The main consideration that the court will take into account is the ability of the respondent to comply with any order for security for costs. The court should not normally make the continuation of a claimant claim dependant on a condition which makes it impossible for claimant to fulfil, because this is restricting access to the justice system. It would be likely to breach art 6 ECHR
Other considerations
Sir Lindsay Parkinson v Triplan)
If there’s been any admission of liability from the defendant
Delay of the application makes it less likely to succeed
A claim which has little prospect of winning will make the defendant more likely to succeed
If defendant is responsible for closings financial difficulties this will make the application less likely to succeed.
Procedure for security for costs?
Procedure
* Normal rules applying to interim applications apply – in addition note that the application notice should state which ground or enactment applied. MUST be supported by written evidence, normally in a witness statement that should cover.
o The ground for impecunious company ground
o The factors in the exercise of courts discretion
o Likely costs to trial
o Amount of security requested
* Amount of security:
* If court makes an order for security of costs it will determine the amount of security as well as the manner in which and the time within security need be given. Entirely at courts discretion. Take into account:
Interim injunctions?
an order requiring a party to do or refrain from doing a given act. Breach of an injunction is potentially punishable as contempt of court
interim injunction a temporary measure taken at an early stage in proceedings, before trial and before any final decision on the merits of either party’s case to resting the respondent from causing irreplaceable or immeasurable damage to the applicant by continuing conduct or ceasing conduct that had led to dispute
Guidelines for interim injunctions?
ALSO A DISCRETIONARY REMEDY
Step 1- is there a serious question to be tried?
* An injunction is not a cause of action it’s a remedy. Therefore, applicant cannot sue for an injunction, must have a pre-existing cause of action.
Step 2 - would damage be an adequate remedy for a party injured by the courts grant or failure to grant an injunction?
* Court will first consider the issue from the applicant’s perspective and depending on outcome of analysis court might then consider respondents POV
* Applicants POV – court will generally refuse if applicant could be adequately compensated by damages for any loss caused by refusal of grant
Step 3 – the balance of convenience
If it appears that damages would be adequate for neither party, then the court will consider a very broad range of factors to try and ascertain whether granting or not granting carries the lesser risk of injustice
Step 4 – equitable and discretionary
So equitable principles apply:
* An injunction will not be obtained whether it would serve no practical purpose.
* Court may refuse to grant it if applicant has not come to court with clean hands
* Excessive delay may lead to refusal of the application.
* It’s also discretionary remedy, no automatic right to an injunction.
