Interim Applications Flashcards
(30 cards)
What is an interim application?
An interim application is a request made to the court for orders or directions at any point after a claim is issued and before trial, to deal with issues arising before final judgment.
What document initiates an interim application?
An interim application is initiated by filing an application notice (Form N244), along with supporting evidence and a draft order, and paying a fee
When should an interim application be made?
As soon as it becomes apparent it is necessary or desirable, and wherever possible, it should be combined with other applications to be heard together
What must the application notice include?
The application notice must state:
- Who is making the application;
- The order sought;
- The reasons for the application; and
- The supporting evidence.
How is evidence provided in an interim application?
Evidence may be provided:
- In the application notice (with statement of truth);
- In a witness statement; or
- By reference to statements of case.
How much notice must be given to the respondent?
Documents must be served as soon as practicable and not less than 3 clear days before the hearing
Can a hearing be conducted without notice to the respondent?
Yes, but only in exceptional cases, such as where there is urgency, overriding objective supports it, or court permission is granted
What safeguards apply to without notice applications?
Applicant must:
- Explain why no notice is given;
- Make full and frank disclosure of all material facts;
- Serve the order, application, and evidence after the hearing;
- Ensure the order contains notice of the right to set aside.
What is the purpose of summary judgment?
To allow the court to dispose of weak claims or defences without a full trial
What are the grounds for summary judgment?
he court may grant summary judgment if:
A) The claimant has no real prospect of succeeding; or the defendant has no real prospect of defending; and
B) There is no other compelling reason for trial
What does ‘no real prospect of success’ mean?
The claim or defence must be fanciful, not merely unlikely. The court does not conduct a mini-trial but requires more than a merely arguable case.
What are compelling reasons to go to trial?
Examples include:
- Need for expert evidence;
- Need for scrutiny of documents;
- Right to jury trial (e.g. fraud).
What is the procedure for summary judgment?
Application notice, evidence, and draft order must be served at least 14 days before the hearing. Respondent evidence must be served at least 7 days before, and any reply at least 3 days before.
What orders may the court make at a summary judgment hearing?
- Dismiss the application
- Dismiss the claim/issue
- Grant judgment
- Impose a conditional order
What is an interim payment?
An amount paid by the defendant on account of damages or debt that may ultimately be awarded to the claimant
What are the conditions for an interim payment order?
One of the following must apply:
- Defendant admitted liability to pay damages;
- Claimant has obtained judgment for damages to be assessed;
- The court is satisfied the claimant would obtain substantial judgment if the claim proceeded to trial
What evidence is required for an interim payment?
Evidence must explain:
- The condition relied upon;
- The amount likely to be awarded at trial;
- The amount sought;
- What the payment will be used for
When can an application be made?
After the time for the defendant’s acknowledgment of service has expired
What restriction applies to interim payments?
The amount must not exceed a reasonable proportion of the likely final judgment
Are interim payments disclosed at trial?
No, unless the defendant agrees or liability and quantum have been determined
What is security for costs?
An order requiring the claimant to provide security for the defendant’s costs of defending the claim
When can security for costs be granted?
When:
- One or more conditions under CPR 25.13(2) are met; and
- The court considers it just to make the order (CPR 25.13(1)).
What are examples of conditions justifying security?
- Claimant is resident outside the jurisdiction (not a Hague Convention state);
- Claimant is a company likely to be unable to pay costs;
- Claimant is moving or hiding assets.
What are factors in the court’s discretion to order security?
- Whether claimant can comply with the order;
- Delay in application;
- Whether claim is bona fide or speculative;
- Whether the claimant’s financial situation was caused by the defendant.
