Interim applications

Question 1

Interim applications are…

Answer 1

applications for orders or directions made to the court usually in the ‘interim’ period between commencement of proceedings and trial (although some can be made before commencement of proceedings).

Question 2

an interim application should be made…

Answer 2

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

Question 3

parties are under specific obligation to…

Answer 3

‘bunch’ their interim applications and ensure matters get dealt with at a single hearing wherever possible.

Question 4

Party making application is…

Answer 4

applicant and the other party is the respondent.

Question 5

sometimes CPR requires particular evidence for particular types of application (evidence is advisable even if not strictly required). Evidence can be given:

Answer 5

-in the application notice itself.
-by referring to existing statements of case.
-in a witness statement.

Question 6

applicant should also file …

Answer 6

draft order at court setting out the terms it is seeking, following which the court issues the application and provides notice indicating date and time application will be heard by court.

Question 7

Applicant must then serve on the other party…

Answer 7

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

Question 8

service must be effected…

Answer 8

as soon as practicable after the application is filed and not less than 3 clear days before application is to be heard.

Question 9

statement of costs in relation to application should be filed and exchanged…

Answer 9

not less than 24 hours before hearing.

Question 10

In accordance with overriding objective, court may order that hearing should…

Answer 10

take place remotely. if hearing is expected to last less than 2 hours, it is commonly conducted remotely.

Question 11

Matters can be dealt with in the absence of a hearing if:

Answer 11

-parties have agreed the terms of the order.
-parties agree there should be no hearing.
-court does not consider a hearing appropriate.

Question 15

Normal procedure for interim applications are…

Answer 15

‘on notice’ or ‘with notice’.

Question 15

alternative procedure is to make an application…

Answer 15

‘without notice’.

Question 16

‘without notice’ application is permitted only if:

Answer 16

1. there is exceptional urgency.
2. the overriding objective is best furthered by doing so;
3. all parties consent;
4. the court gives permission;
5. a court order, rule or practice direction permits; or
6. a date for a hearing has been fixed, a party wishes to make an application at that
   hearing but does not have sufficient time to serve an application notice.

Question 17

Application ‘without notice’ must:

Answer 17

1. explain why no notice is given;
2. draw to the court’s attention arguments and evidence in support of the (absent) respondent’s position.
3. serve the respondent as soon as possible after the hearing, whether or not the court has granted the relief sought. The documents the applicant must serve on the respondent are:
   * The application notice
   * The evidence in support
   * The order.
4. The court order must contain a statement of the respondent’s 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) .

Question 18

Interim payment is…

Answer 18

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

Question 19

court will only make an order where:

Answer 19

-defendant has admitted liability to pay damages to claimant.
-claimant has obtained judgment against defendant for damages to be assessed.
-it is satisfied that if the claim went to trial, claimant would obtain judgment for a substantial amount of money against defendant from whom they are seeking interim payment (regardless of no. of defendants).

Question 20

Applicant must provide evidence that deals with:

Answer 20

• 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;
• In claims for personal injuries, details of special damages and past and future loss;
  and
• In claims under the Fatal Accidents Act 1976, details of the person(s) on whose behalf
  the claim is made and the nature of the claim.

Question 21

A claimant seeking an interim payment would make a request …

Answer 21

for a voluntary payment
from defendant first. If defendant does not agree, claimant would make an application to court for an interim payment.

Question 22

claimant can make a request to 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…

Answer 22

the end of the period for the defendant
filing an acknowledgment of service.

Question 23

can the claimant make more than one application for an interim payment order?

Answer 23

Yes

Question 24

court must not make an interim payment of more than...

Answer 24

a reasonable proportion of the likely amount of the final judgment, taking into account any contributory negligence, set-off or counterclaim.

Question 25

Service must be carried out...

Answer 25

at least 14 days before the hearing.

Question 26

Respondent files and serves evidence on applicant at least...

Answer 26

7 days before hearing.

Question 27

Applicant files at court and serves on respondent evidence in reply at least...

Answer 27

3 clear days before hearing.

Question 28

Unless the defendant agrees, an interim payment made by a defendant in the course of the proceedings (whether voluntarily or by court order) will...

Answer 28

not be disclosed to the trial judge until all questions of liability and quantum have been decided.

Question 29

security for costs is...

Answer 29

an application made by a person in the position of defendant (the applicant) who is concerned that the claimant (the respondent) will not be willing / able to pay the defendant’s costs should the claim be successfully defended.

Question 30

Defendant must satisfy the 2 orders:

Answer 30

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

Question 31

Prescribed conditions for security for costs:

Answer 31

-claimant is resident out of the jurisdiction (but is not resident in a State bound by the 2005 Hague Convention). -claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so. -claimant has taken steps in relation to its assets that would make enforcement of a costs order against it difficult.

Question 32

Even if one of the prescribed conditions is made out, the court is not obliged to give security; security will only be granted by the court if:

Answer 32

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

Question 33

In addition to normal rules applying to interim applications:

Answer 33

-application notice should state which ground(s) or enactment applies. -application must be supported by written evidence covering ground, factors in the exercise of court's discretion, likely costs to trial and amount of security requested.

Question 34

If the court makes an order for security for costs it will determine...

Answer 34

the amount of security as well as the manner in which and the time within which the security is given.

Question 35

The manner in which security is given can be:

Answer 35

* A payment into court (most common) * A payment to the defendant’s solicitor * A bank guarantee * An undertaking to pay costs

Question 36

An injunction is...

Answer 36

an order of the court requiring a party to do or to refrain from doing a given act. Breach of an injunction is potentially punishable as contempt of court.

Question 37

An interim injunction is...

Answer 37

a temporary measure taken at an early stage in the proceedings (including pre-action) before trial and before any final decision on the merits of either party’s case to restrain the respondent from causing irreparable or immeasurable damage to the applicant by continuing conduct or ceasing conduct that has led to the dispute.

Question 38

perpetual injunction is...

Answer 38

a final injunction that continues with no limitation of time.

Question 39

Prohibitory injunction

Answer 39

Requires the respondent to refrain from doing an act.

Question 40

Mandatory injunction

Answer 40

Requires the respondent to do a specific act.

Question 41

Quia timet injunctions

Answer 41

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

Question 42

Evidence required - American Cyanamid guidelines / just and convenient

Answer 42

1. Is there a serious question to be tried? 2.Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction? 3. Where does the balance of convenience lie?

Question 43

Step 1: is there a serious question to be tried?

Answer 43

applicant must have a pre-existing cause of action and court must be satisfied that this is not "frivolous or vexatious” and that “there is a serious question to be tried”.

Question 44

Step 2: would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?

Answer 44

2(a) - court will generally refuse an injunction if the applicant could be adequately compensated by damages for any loss caused by the refusal to grant an interim injunction. 2(b) - court will ask itself whether the respondent could be adequately compensated by the applicant if it transpires that the injunction was wrongly granted. If so, then this suggests the injunction should be granted.

Question 45

Step 3: the balance of convenience