Interim applications Flashcards by Paaris Khan

What is an interim application?

Applications for orders or directions made to the court during the interim period between commencement and trial

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What are some examples of interim applications?

Extending time periods for actions in proceedings
Amending a statement of case
Requiring further information from the other party
Requesting specific disclosure of a document
Seeking permission to rely on expert evidence

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What is the main purpose of civil procedure rules (CPR) in relation to interim applications?

To provide guidelines for making interim applications, including time limits and requirements

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When should an interim application be made?

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

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What is the obligation of parties regarding interim applications?

To ‘bunch’ their interim applications and address outstanding matters at a single hearing wherever possible

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What form is used for filing an application notice?

Form N244

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What information must be included in an application notice (CPR 23.6)?

Who is making the application
What order the applicant wants
Why the applicant is asking for that order
Information relied on in support of the application

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What is required to support an application?

Evidence, which can be given in one of three ways: in the application notice, by referring to existing statements of case, or in a witness statement or affidavit

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What is the general rule for serving the application notice?

Must be served as soon as practicable after filing, and not less than three clear days before the hearing

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What must the applicant file and serve regarding further evidence?

Respondent’s evidence as soon as possible
Applicant’s evidence in reply as soon as possible

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What are the possible formats for a hearing of an interim application?

In person
By telephone
By video conference
In absence of a hearing under certain conditions

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What are the procedural safeguards for without notice applications?

Explain why no notice is given
Draw attention to arguments and evidence supporting the absent respondent’s position
Serve the respondent as soon as possible after the hearing

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What must the court order contain for without notice applications?

A statement of the respondent’s right to apply to set aside or vary the order

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What is the purpose of summary judgment?

To enable the court to dispose of claims or issues without the need for a full trial

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What are the grounds for summary judgment (CPR 24.2)?

Claimant has no real prospect of succeeding
Defendant has no real prospect of successfully defending
No other compelling reason for trial

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What does ‘no real prospect’ mean?

The position is fanciful, imaginary, or false

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Who can apply for summary judgment?

Claimant after the defendant has filed an acknowledgment of service or defence
Defendant anytime after proceedings have commenced

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What is required for the evidence supporting a summary judgment application?

Must address the grounds set out and identify any relevant law or document provision

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What is the effect of a summary judgment application on proceedings?

Creates a pause in the proceedings while the application is being decided

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What is the application notice for summary judgment required to include?

Statement that it is an application for summary judgment under Part 24
Direct the respondent’s attention to CPR requiring filing and serving evidence

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What is the time frame for service of the application notice for summary judgment?

At least 14 days before the hearing

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What must both parties file and exchange before the hearing?

Statements of costs not less than 24 hours before the hearing

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What is the time frame for the respondent to file and serve evidence before a summary judgment hearing?

At least 7 days before the hearing.

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What is the time frame for the applicant to file and serve evidence in reply before a summary judgment hearing?

At least 3 days before the hearing.

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How long before the hearing must both parties file and exchange statements of costs?

Not less than 24 hours before the hearing.

What must the application notice include for a summary judgment?

A statement that it is an application for summary judgment under Part 24 and direct the respondent's attention to the CPR.

What are the potential orders at a summary judgment hearing?

* Dismissal of the application * Dismissal of the claim * Judgment on the claim * Conditional order

What is summary judgment?

The disposal of cases or issues without trial.

Who can apply for summary judgment?

The claimant or defendant.

What grounds justify an application for summary judgment?

* The claimant has no real prospect of succeeding * The defendant has no real prospect of successfully defending * No other compelling reason for trial

What is an interim payment?

A payment on account of damages, debt or other sum that a defendant may be liable to pay to a claimant.

Under what conditions can the court make an order for interim payments?

* Defendant admitted liability * Claimant obtained judgment against the defendant * Satisfaction that claimant would obtain judgment for a substantial amount

What must the applicant provide evidence about when applying for an interim payment?

* Reasons for believing conditions are satisfied * Likely final judgment amount * Amount sought for interim payment * Items or matters for interim payment * Any other relevant matters

What is required before a claimant can apply for an interim payment?

The claimant must serve the application notice and evidence on the defendant at least 14 days before the interim hearing.

What is security for costs?

An application made by a defendant concerned that the claimant will not be able or willing to pay the defendant's costs.

What does the court require to grant security for costs?

* It is just to make an order * One or more prescribed conditions are satisfied

What is a prescribed condition for security for costs?

* Claimant is resident out of the jurisdiction * Claimant is a company likely unable to pay costs * Claimant has taken steps to make enforcement difficult

What does it mean for a claimant to be 'resident out of the jurisdiction'?

The claimant is not in England and Wales, and not in a state bound by the 2005 Hague Convention.

What is needed to prove the 'impecunious claimant company' condition?

* The company's inability to pay costs * The amount of likely costs.

What does the court consider when deciding on security for costs?

The ability of the respondent to comply with any order for security.

What happens if the court grants an order for security for costs?

The court will determine the amount and manner in which security is given.

What is the role of the application notice in requesting security for costs?

It should state which ground(s) or enactment applies.

What must evidence provided for security for costs include?

* Grounds for the application * Factors for the court’s discretion * Likely costs to trial * Amount of security requested.

True or False: An interim payment will be disclosed to the judge at trial.

False.

Fill in the blank: A claimant may wish to ask for an interim payment to assist it financially in the _______ period prior to settlement/trial.

interim

What is the purpose of security for costs?

To ensure that the defendant can recover costs if they successfully defend the claim and the claimant cannot pay.

What factors does the court consider when determining the amount of security for costs?

* The amount of the defendant’s likely costs * Security can cover both incurred and future costs * Deductions for likely reductions upon assessment of costs * Any delays affecting the security amount

What are the types of security that can be ordered by the court?

* Payment into court * Payment to the defendant’s solicitor * Bank guarantee * Undertaking to pay costs

Who is the applicant in a security for costs application?

The defendant.

What must the defendant show to satisfy the court for a security for costs order?

* The claimant's ability to pay * Prospects of the claim succeeding * Any delay in making the application * One or more of the prescribed conditions applies

What is an injunction?

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

What is an interim injunction?

A temporary measure taken before trial to restrain the respondent from causing irreparable damage.

What is the difference between a prohibitory injunction and a mandatory injunction?

* Prohibitory injunction: Requires the respondent to refrain from doing an act * Mandatory injunction: Requires the respondent to do a specific act

What are the American Cyanamid guidelines for granting an interim injunction?

* Step 1: Is there a serious question to be tried? * Step 2: Would damages be an adequate remedy? * Step 3: Where does the balance of convenience lie?

What does it mean for an injunction to be an equitable and discretionary remedy?

The court has discretion in granting an injunction and must consider equitable principles.

What is required when applying for an interim injunction without notice?

The applicant must make full and frank disclosure of all relevant facts.

What is a cross-undertaking in damages?

An undertaking to pay damages to the respondent if the injunction is later found to be wrongly granted.

What must the court consider when determining if an interim injunction serves a practical purpose?

Whether the applicant has come to court with 'clean hands' and whether there has been excessive delay.

What happens at the return date hearing after a without notice interim injunction is granted?

* Maintain the order * Discharge the injunction * Vary the terms of the injunction * Accept an undertaking from the respondent

Under what circumstances can a party apply for an interim injunction before a claim is issued?

* If it is urgent * If it is desirable in the interests of justice

What are the three steps in the guidelines for the exercise of discretion in granting an interim injunction?

* Step 1: Is there a serious question to be tried? * Step 2: Would damages be an adequate remedy for both parties? * Step 3: Where does the balance of convenience lie?

Fill in the blank: An interim injunction usually lasts until _______.

[trial or further order]

True or False: An injunction can be obtained as a cause of action.

False.