Interim applications Flashcards
1
Q
What are interim applications?
A
Applications for orders or directions made to the court
2
Q
Give examples of interim applications.
A
Extending time
3
Q
Who can make interim applications?
A
Any party to the proceedings.
4
Q
What approach should parties take regarding interim applications?
A
Try to agree matters to avoid court application or make it less contentious.
5
Q
When should a party apply if an interim application is necessary or desirable (23A PD 2.5)?
A
As soon as it becomes apparent.
6
Q
What obligation do parties have regarding ‘bunching’ interim applications (23A PD 2.6)?
A
To issue necessary applications to be dealt with at a single hearing if one is already fixed.
7
Q
What is the party making the application called?
A
The applicant.
8
Q
What is the other party to an interim application called?
A
The respondent.
9
Q
How does the application process begin?
A
By the applicant filing an application notice (Form N244) at court.
10
Q
What information must the application notice state (CPR 23.6)?
A
Who is applying
11
Q
Is a fee payable to issue an application notice?
A
Yes.
12
Q
Where should the application be made (CPR 23.2)?
A
To the court dealing with the main claim or likely to deal with pre-action applications.
13
Q
What evidence should accompany an application notice (23A PD 7.1)?
A
Evidence
14
Q
What else should the applicant file at court?
A
A draft order setting out the terms sought.
15
Q
What does the court do after receiving the application notice
A
evidence
16
Q
Who is responsible for serving the application documents (CPR 23.7)?
A
The applicant
17
Q
What documents must be served on the other party?
A
Application notice
18
Q
What is the general time limit for serving the application (CPR 23.7)?
A
As soon as practicable and not less than three clear days before the hearing.
19
Q
What might the respondent file in response?
A
Evidence in the form of a witness statement or affidavit (23A PD 7.2).
20
Q
When should the respondent’s evidence be filed and served?
A
As soon as possible and according to any court timings.
21
Q
What can the applicant file in reply to the respondent’s evidence?
A
Further evidence (23A PD 7.3).
22
Q
When should the applicant’s reply evidence be filed and served?
A
As soon as possible and according to any court timings.
23
Q
When should statements of costs be filed and exchanged (44 PD 9.5)?
A
Not less than 24 hours before the hearing.
24
Q
How are most interim applications dealt with?
A
At a hearing.
25
How might a hearing take place instead of in person (23A PD 6)?
By telephone (usually under one hour) or exceptionally by video conference.
26
When might a matter be dealt with without a hearing (CPR 23.8)?
If parties agree on the order (consent order)
27
What happens after the court considers the application?
The court makes a decision
28
What are the key steps for making an interim application with notice?
Issue (application notice
29
What is the normal procedure for interim applications?
'On notice' or 'with notice'.
30
When is a 'without notice' application permitted (23A PD 3)?
Exceptional urgency
31
What must the applicant explain in a 'without notice' application?
Why no notice is given.
32
What duty does the applicant have regarding the respondent's position in a 'without notice' application?
To draw the court's attention to arguments and evidence supporting the absent respondent.
33
What must the applicant serve on the respondent after a 'without notice' hearing (CPR 23.9)?
Application notice
34
What right must the court order in a 'without notice' application contain?
The respondent's right to apply to set aside or vary the order.
35
What is the time limit for a respondent to apply to set aside a 'without notice' order (CPR 23.10)?
Within 7 days of the order being served on them.
36
When are interim applications usually made?
Between commencement and trial
37
Which CPR part governs the procedure for interim applications?
CPR 23.
38
When should an interim application be made?
As soon as it is apparent it is necessary.
39
Are interim applications usually made with or without notice?
Usually 'with notice'.
40
What are the key steps for a 'with notice' application?
File application
41
What must the application notice state?
The order sought and the reasons why.
42
When can a 'without notice' application be made?
Urgent matters
43
What safeguards exist for 'without notice' applications?
Applicant explains no notice
44
What is the purpose of summary judgment (CPR 24.1)?
To enable the court to dispose of claims or issues without a full trial.
45
What is the effect of granting summary judgment on an issue?
That issue is no longer considered at trial
46
How does summary judgment further the overriding objective?
By allowing the court to deal with weak cases or issues proportionately and expeditiously.
47
Who can apply for summary judgment?
Either the claimant or the defendant.
48
What is the relationship between summary judgment and strike out?
Considerable overlap; often appropriate to combine applications. Strike out focuses on defective statements of case
49
What is the key difference between summary judgment and default judgment?
Summary judgment considers the merits of the case (lack of real prospect)
50
What are the two limbs of the grounds for summary judgment (CPR 24.2)?
(A) No real prospect of success for claimant's claim/issue OR no real prospect of successful defence for defendant's claim/issue; AND (B) No other compelling reason for trial.
51
What does 'no real prospect' mean in the context of summary judgment?
Fanciful
52
What level of chance of success does the respondent need to show to defeat a summary judgment application?
Some chance
53
Give examples of 'compelling reasons' for a trial despite no real prospect.
Need more investigation time
54
What must the evidence supporting a summary judgment application address?
The grounds for summary judgment (no real prospect and no other compelling reason).
55
What specific statements must the application notice or supporting evidence include?
Concise point of law/document provision relied on; statement of belief in no real prospect and no other compelling reason.
56
When can a claimant apply for summary judgment (CPR 24.4)?
After the defendant files acknowledgment of service or defence (or earlier with court permission).
57
When can a defendant apply for summary judgment?
Anytime after proceedings have commenced.
58
Can the court initiate a summary judgment hearing?
Yes
59
When should parties ideally apply for summary judgment?
Before or at the same time as filing Directions Questionnaires (26 PD 5.3(1)).
60
What is the usual consequence of a claimant failing to comply with a pre-action protocol on a summary judgment application (24 PD 2(6))?
It will not normally be considered before defence is filed or time expires.
61
What is the effect of a claimant applying for summary judgment before defence?
Defendant's time to file defence is extended until after the hearing (CPR 24.4(2)).
62
What is the effect of a defendant applying for summary judgment?
Defendant does not have to file acknowledgment or defence until after the hearing.
63
What general rules apply to summary judgment applications
with some modifications?
64
What is the key difference in service time for summary judgment applications compared to normal interim applications?
At least 14 days before the hearing (compared to 3 clear days).
65
What specific statement must the application notice for summary judgment include (24PD 2)?
That it is an application for summary judgment under Part 24 and directs respondent to file evidence at least 7 days before.
66
What are the potential orders the court can make at a summary judgment hearing?
Dismissal of application
67
What is a 'conditional order' in summary judgment context?
Court refuses summary judgment but allows the respondent to continue only if they meet certain conditions (e.g.
68
What is the core principle of summary judgment?
Disposal of cases or issues without the need for a full trial.
69
Who can initiate summary judgment proceedings?
Claimant
70
What are the two key elements the applicant must demonstrate for summary judgment?
No real prospect of success for the other party and no other compelling reason for a trial.
71
How is an application for summary judgment made?
Using an application notice supported by evidence and a draft order.
72
What are the key procedural steps for a summary judgment application?
Specific deadlines for filing and serving evidence by both parties before the hearing.
73
What are the possible outcomes of a summary judgment hearing?
Judgment
74
What is an interim payment (CPR 25.1(1)(k))?
A payment on account of damages
75
Who typically applies for an interim payment?
The claimant.
76
What is a common reason a claimant might seek an interim payment
particularly in personal injury claims?
77
Under what conditions will the court order an interim payment?
Defendant admits liability
78
What evidence must the applicant provide (25B PD 2.1)?
Reasons for believing conditions are met
79
What supporting documents should be exhibited with the application?
Any relevant documents
80
What initial step should a claimant take before applying to the court for an interim payment?
Make a request for a voluntary payment from the defendant.
81
When can a claimant first apply to the court for an interim payment (CPR 25.6(1))?
Not before the end of the period for the defendant to file an acknowledgment of service.
82
Can a claimant make multiple applications for interim payment orders?
Yes.
83
What general rules apply to interim payment applications
with some modifications?
84
What is a key limitation on the amount of an interim payment (CPR 25.7)?
It must not be more than a reasonable proportion of the likely amount of the final judgment
85
What is the service timeframe for an application for interim payment?
At least 14 days before the hearing.
86
What restriction applies to the disclosure of interim payments to the trial judge (CPR 25.9)?
Unless the defendant agrees
87
Who can apply for an interim payment?
The claimant.
88
What is the nature of an interim payment?
A payment on account of what the defendant may ultimately owe the claimant (excluding costs).
89
What must a claimant satisfy the court of to obtain an interim payment (CPR 25.7)?
One of the specified conditions regarding admission of liability
90
What is the timeframe for serving the application notice and evidence for an interim payment hearing?
At least 14 days before the hearing.
91
What is a key limitation on the amount of an interim payment order?
No more than a reasonable proportion of the likely final judgment.
92
Is an interim payment disclosed to the judge at trial?
No
93
Who typically applies for security for costs?
A person in the position of defendant (the applicant).
94
What is the concern of the applicant in security for costs?
That the claimant (the respondent) will not be willing/able to pay the defendant's costs if the claim is successfully defended.
95
What is the most common way security for costs is provided if ordered?
A payment into court by the claimant.
96
Does security for costs relate to the level of damages?
No
97
Against whom can a defendant seek security for costs?
Against the claimant.
98
Against whom can a claimant seek security for costs?
Against a defendant in respect of a counterclaim.
99
Against whom can a third party seek security for costs?
Against a defendant in respect of an additional claim (CPR 20).
100
What two matters must a defendant satisfy the court of before a security for costs order can be made (CPR 25.13(1))?
That it is just to make the order and that one or more of the prescribed conditions are satisfied.
101
What overarching principle will the court also consider?
The overriding objective.
102
Name three of the prescribed conditions for security for costs (CPR 25.13(2)).
Claimant resident out of jurisdiction (not Hague Convention state)
103
Give three other grounds for security for costs.
Claimant changed address to evade litigation consequences
104
What is the meaning of 'resident' for an individual in this context?
Their habitual or normal residence.
105
What is the meaning of 'resident' for a company?
Where the company’s central management and control is exercised.
106
What does 'out of the jurisdiction' essentially mean?
Not in England and Wales.
107
Is security for costs available if the claimant is resident in a state bound by the 2005 Hague Convention?
No.
108
What must the defendant show to satisfy the 'impecunious claimant company' condition?
The company's inability to pay costs and the amount of likely costs.
109
Does the defendant have to prove the claimant company is definitely unable to pay?
No
110
What is the purpose of the 'claimant moving assets' condition?
To prevent injustice where assets for enforcing a costs order are being put beyond reach.
111
Even if a prescribed condition is met
is the court obliged to order security for costs?
112
What is the main consideration for the court when deciding if it is 'just' to order security for costs?
The respondent's ability to comply with the order.
113
Should the court make an order that prevents the claimant from continuing their claim?
Not normally
114
What human rights consideration is relevant?
Article 6 ECHR (right to a fair trial) - the order should not disproportionately restrict access to justice.
115
Name some other factors the court will consider (Sir Lindsay Parkinson v Triplan).
Admission of liability/substantial open offers by defendant
116
What general rules apply to security for costs applications?
The normal rules relating to interim applications.
117
What specific information should the application notice state?
Which ground(s) or enactment applies.
118
What must support the application (CPR 25.12(2))?
Written evidence
119
What should the witness statement typically cover?
The ground for application
120
Who determines the amount of security?
The court
121
What factors will the court consider when determining the amount of security?
Likely costs
122
What are some ways security can be given?
Payment into court
123
What is the most frequent type of security ordered?
Payment of a sum into court by a required date.
124
Who is the applicant in a security for costs application?
The defendant.
125
What is the underlying concern for the defendant seeking security for costs?
The claimant's potential unwillingness/inability to pay costs if the defence is successful.
126
What two key elements must the defendant convince the court of?
That it is just to make the order and that one of the prescribed conditions applies.
127
What aspects will a security for costs order specify?
The amount
128
What type of evidence is required to support the application?
Usually a witness statement.
129
What is an injunction?
A court order requiring a party to do or refrain from doing a specific act.
130
What is an interim injunction?
A temporary order before trial to prevent irreparable damage
131
What is a perpetual injunction?
A final injunction
132
What is a prohibitory injunction?
An injunction requiring the respondent to refrain from doing an act.
133
What is a mandatory injunction?
An injunction requiring the respondent to do a specific act.
134
What is a quia timet injunction?
An injunction (prohibitory or mandatory) granted where a wrong is threatened but not yet committed.
135
What is the statutory basis for granting an injunction?
Section 37 of the Senior Courts Act 1981 (just and convenient).
136
What case established guidelines for granting interim injunctions?
American Cyanamid Co v Ethicon Ltd [1975] AC 396.
137
What is Step 1 of the American Cyanamid guidelines?
Is there a serious question to be tried?
138
What is Step 2 of the American Cyanamid guidelines?
Would damages be an adequate remedy for a party injured by the court’s grant of
139
What is Step 3 of the American Cyanamid guidelines?
Where does the balance of convenience lie?
140
Is an injunction a cause of action or a remedy?
A remedy; an applicant must have a pre-existing cause of action.
141
What level of seriousness must the applicant's claim reach for Step 1?
It must not be "frivolous or vexatious"; there must be a "serious question to be tried".
142
From the applicant's perspective (Step 2a)
when might damages be inadequate?
143
From the respondent's perspective (Step 2b)
what suggests an injunction should be granted?
144
What does the court consider in Step 3 if damages are inadequate for both parties?
A broad range of factors to determine where the 'balance of convenience' lies
145
What equitable principles apply to injunctions?
No practical purpose
146
Is there an automatic right to an injunction if the guidelines are met?
No
147
What type of evidence must support an application for an interim injunction (CPR 25.3(2))?
Written evidence setting out the facts justifying the relief sought.
148
What additional information is needed if the application is made without notice (CPR 25.3)?
The reason why notice has not been given.
149
Is an application for an interim injunction an interim application?
Yes.
150
What is a common requirement for the applicant when an interim injunction is granted?
To offer a cross-undertaking in damages to the respondent.
151
What is a cross-undertaking in damages?
The applicant's promise to the court to pay the respondent for any loss caused if the injunction was wrongly granted.
152
Who is the cross-undertaking made to?
The court.
153
For whose protection is the cross-undertaking primarily intended?
The respondent.
154
What might the court also require an undertaking for?
The protection of any other person who may suffer loss due to the order (25A PD 5.1 and 5.2).
155
If a 'without notice' injunction is granted
for how long is it usually initially granted?
156
What is the second hearing in a 'without notice' injunction case called?
The 'return date'.
157
What orders can the court make at the 'return date' hearing?
Maintain
158
What duty does the applicant have in a 'without notice' application?
To make full and frank disclosure of all relevant facts and law
159
What must the applicant's legal representatives prepare after a 'without notice' hearing?
A full note of the hearing
160
In what circumstances can a party apply for an interim injunction before issuing a claim form (CPR 25.2(2)(b))?
Exceptional urgency or if otherwise desirable in the interests of justice.
161
What undertaking must the applicant give to the court in a pre-action injunction application?
To issue a claim form immediately.
162
What are the two main types of interim injunctions?
Prohibitory (refrain from acting) and mandatory (require action).
163
What is the basis for granting an interim injunction?
It is just and convenient.
164
What kind of remedy is an injunction?
Both equitable and discretionary.
165
What are the three steps of the American Cyanamid guidelines for the court's discretion?
Serious question to be tried
166
What is a common requirement for the applicant when an interim injunction is ordered?
To undertake to pay damages to the respondent if the injunction was wrongly awarded.
