Interim Applications

Question 1

Interim applications

Answer 1

applications made anytime before the dispute goes to trial

Question 2

Specific deadlines for summary judgments and interim payments

Answer 2

(1) service at least 14 days before hearing
(2) respondent serves evidence on applicant & files at court at least 7 days before the hearing
(3) applicant serves evidence at least 3 days before hearing

Question 3

General timeline for interim applications

Answer 3

Issue → Service → Further evidence → Hearing

Question 4

Purpose of summary judgment

Answer 4

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

Question 5

Interim payment

Answer 5

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

Question 6

Who applies for interim payments?

Answer 6

the claimant

Question 7

interim injunction

Answer 7

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

Question 8

When should an interim application be made?

Answer 8

the party should apply as soon as it becomes apparent that it is necessary or desirable to make an application

Question 9

How does the applicant initiate an interim application?

Answer 9

applicant files an application notice (Form N244) at court and pays court fee

Question 10

General rule for service of an interim application

Answer 10

ASAP after the application is filed and not less than 3 clear days before the application is to be heard

Question 11

Deadline for serving an interim application before hearing

Answer 11

3 clear days

Question 12

What must be served on the other party after the application has been issued by the court?

Answer 12

The application notice, note from the court indicating the date and time of the hearing, evidence and draft order

Question 13

When should a statement of costs in relation to the application be filed and exchanged?

Answer 13

not less than 24 hours before the hearing

Question 14

When are the courts most likely to order a telephone hearing?

Answer 14

if the hearing is expected to last less than 1 hour

Question 15

Which documents are taken to court for a hearing date to be set?

Answer 15

Application notice (Form N244)
Supporting evidence
Draft order
Fee

Question 16

When might there not be a hearing for an interim application?

Answer 16

The parties have agreed the terms of the order (they should send in a ‘consent order’ signed on behalf of each party);
The parties agree there should be no hearing; or
The court does not consider a hearing appropriate

Question 17

Procedural safeguards for without notice hearings

Answer 17

The application must explain why no notice is given;
The applicant must serve the respondent ASAP after the hearing, whether or not the court has granted the relief sought.

Question 18

For without notice hearings, the documents the applicant must serve on the respondent are

Answer 18

The application notice
The evidence in support
The court order

Question 19

Any application to set aside must be made within

Answer 19

7 days of the order being served on the other party

Question 20

Aim of summary judgment

Answer 20

Enables the court to dispose of claims without full trial, saves costs and furthers the overriding objective

Question 21

Who can apply for summary judgment?

Answer 21

Either party can apply if they view the other party’s position to be sufficiently weak

Question 22

Test for summary judgment: Limb 1

Answer 22

The claimant has no real prospect of succeeding on the claim or issue; or
The defendant has no real prospect of successfully defending the claim or issue

Question 23

Test for summary judgment: Limb 2

Answer 23

There are no other compelling reasons why the case or issue should be disposed of at trial

Question 24

In the ‘no real prospect’ test, what does ‘real’ mean?

Answer 24

more than merely arguable

Question 25

Ideally, the claimant or defendant should apply for summary judgment either

Answer 25

before or at the same time as filing the Directions Questionnaires to avoid incurring unnecessary costs

Question 26

A summary judgment application creates ?

Answer 26

a pause in the proceedings

Question 27

The respondent must file and serve evidence at least...

Answer 27

7 days before the summary judgment hearing

Question 28

4 potential outcomes at the summary judgment hearing

Answer 28

Dismissal of application Obtain Summary Judgment Dismissal of claim Conditional order

Question 29

Before applying to the court for an interim payment, the claimant should?

Answer 29

make a request for a voluntary payment from the defendant first

Question 30

During which time can the claimant NOT apply for an interim payment?

Answer 30

the claimant cannot apply for an interim payment before end of the period for D to file an acknowledgment of service

Question 31

the court must not make an interim payment of more than

Answer 31

a reasonable proportion of the likely amount of the final judgment

Question 32

an interim payment made by a defendant in the course of the proceedings will not be disclosed to

Answer 32

the trial judge until all questions of liability and quantum have been decided

Question 33

Security for costs

Answer 33

an application made by a defendant (the applicant) if concerned that the claimant (the respondent) will not be willing and/or able to pay the defendant’s costs if their defence is successful

Question 34

How are security of costs determined?

Answer 34

security for costs relates solely to the costs of the claim, not the level of damages which may be awarded.

Question 35

The defendant must satisfy the court of 2 matters before an order for security for costs can be made

Answer 35

1. Having regard to all the circumstances of the case, it is just to make an order 2. One or more of the prescribed conditions in the rules are satisfied

Question 36

What must the defendant show to satisfy the impecunious claimant company condition?

Answer 36

a) The company’s inability to pay costs; and b) the amount of the likely costs

Question 37

Rule from Jirehouse Capital v Beller which makes it easier for defendants to obtain security for costs from companies

Answer 37

defendant may be able to show that there is ‘reason to believe’ that the claimant company will be unable to pay even if the claimant company can adduce substantial evidence to the contrary

Question 38

security will only be granted by the court if

Answer 38

having regard to all the circumstances of the case, it is just to make such an order

Question 39

An impairment of a claimant’s right of access, which is disproportionate to the need to protect the defendant, is likely to be a breach of

Answer 39

Article 6 ECHR

Question 40

An appiclation for security for costs must be supported by

Answer 40

written evidence, usually a witness statement

Question 41

amount of a security of costs is entirely within

Answer 41

the court’s discretion

Question 42

The most frequent order for security for costs is for a sum to be paid into

Answer 42

court by a required date

Question 43

Who applies for security for costs?

Answer 43

the defendant

Question 44

Breach of an injunction is potentially punishable as

Answer 44

contempt of court

Question 45

a mandatory injunction requires the respondent

Answer 45

to do a specific act

Question 46

a prohibitory injunction requires the respondent to

Answer 46

refrain from doing an act

Question 47

quia timet injunctions allow

Answer 47

both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed

Question 48

An injunction may be granted where it is

Answer 48

just and convenient

Question 49

the 'American Cyanamid guidelines' dictate how

Answer 49

the court should exercise its discretion to grant an interim injunction

Question 50

Step 1 - American Cyanamid guidelines

Answer 50

is there a serious question to be tried?

Question 51

Step 2 - American Cyanamid guidelines

Answer 51

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

Question 52

Step 3 - American Cyanamid guidelines

Answer 52

where does the balance of convenience lie?

Question 53

The court might refuse to grant an injunction if the applicant has not come to court with

Answer 53

clean hands

Question 54

An application for an interim injunction must be supported by

Answer 54

written evidence setting out the facts to justify the relief sought

Question 55

A court will often decide to grant an interim injunction only if the applicant offers

Answer 55

a cross-undertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction

Question 56

Can an application for an interim injunction be made without notice?

Answer 56

Yes

Question 57

A without notice application for an interim injunction can be justified only if

Answer 57

- There is exceptional urgency - If it is the best way to further the overriding objective - All parties consent - The court gives permission - A court order, rule or PD permits or; - A date for 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

Question 58

If the application is made without notice and the injunction is granted, it will be granted initially for

Answer 58

a limited period only and the court will fix a second hearing: the 'return date'

Question 59

For any without notice application, the applicant must make

Answer 59

full and frank disclosure of all matters of fact or law relevant to the application – including those which are or may be adverse to the applicant.

Question 60

The applicant’s legal representatives must prepare a full note of the hearing

Answer 60

ASAP, which should be served on the respondent (and any other party affected by the order) without delay

Question 61

In cases of exceptional urgency, a party can apply for an interim injunction

Answer 61

before a claim form has even been issued

Question 62

The court will only grant an interim remedy before a claim has been issued if the matter is

Answer 62

a) urgent; or b) It is otherwise desirable to do so in the interests of justice

Question 63

interim prohibitory injunction

Answer 63

an order preventing a party from doing a stated act pending determination of the dispute at trial

Question 64

when should a party make an interim application?

Answer 64

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

Question 65

Parties are under a specific obligation to ‘bunch’ their interim applications, meaning

Answer 65

the parties should issue any necessary interim applications to ensure that outstanding matters get dealt with at a single hearing wherever possible

Question 66

Where the court makes a costs order against one party and the other party is not present when the order is made, does that party’s legal representative need to notify them?

Answer 66

Yes, they must notify them in writing of the costs order no later than 7 days after the legal representative receives notice of the order

Question 67

unless order

Answer 67

an order which provides for an automatic sanction in the event of non-compliance with an order. The unless order must specify the date and time within which the act must be done.

Question 68

Can you cross-examine witnesses in an interim hearings?

Answer 68

If, 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

Question 69

What is the court likely to do if a defence is vague or unclear but could be cured by amendment?

Answer 69

the court is unlikely to strike out without first giving the defendant an opportunity to cure it by amendment

Question 70

Can a claimant apply for summary judgment if the defendant has not filed an acknowledgment of service?

Answer 70

A claimant may not apply for summary judgment until the defendant has filed an acknowledgment of service unless the court gives permission

Question 71

the applicant's disclosure duty for all applications without notice

Answer 71

the applicant must make full and frank disclosure of all matters relevant to the application including matters of fact and law which might affect the judge's decision

Question 72

What must the applicant must demonstrate, amongst other things, to persuade the court to grant the injunction?

Answer 72

American Cyanamid guidelines apply - the court must be satisfied on the balance of probabilities that there is a serious issue to be tried would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction? where does the balance of convenience lie?

Question 73

Following American Cyanamid guidelines, what should be considered by the solicitor and his client in relation to damages?

Answer 73

would damages be an adequate remedy for a party injured by the court's grant of, or its failure to grant, an injunction?

Question 74

What is the most likely order that the court will make if a Claimant is awarded an interim payment that exceeds the damages awarded at trial?

Answer 74

Order the Claimant to repay the overpayment to the Defendant and award interest on the overpaid amount from the date the interim payment was made

Question 75

'no order as to costs' for interim hearings

Answer 75

each party will bear its own costs in the application whatever the outcome at trial

Question 76

A stay of proceedings

Answer 76

a period of time during which the proceedings are paused, and the parties are prevented from taking any steps in the proceedings, apart from steps allowed by the CPR or the terms of the stay

Question 77

If all parties request a stay, the claim will be stayed for

Answer 77

a month

Question 78

What happens if the case is not settled at the end of the stay period and the parties have not applied for an extension of the stay to continue negotiations?

Answer 78

the case will be referred to a judge for allocation and directions

Question 79

If the defendant applies for summary judgment, what docs does the defendant NOT need to file?

Answer 79

acknowledgement of service or a defence until after the summary judgment hearing