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Interim Applications (25.3 - HOW TO APPLY FOR AN INTERIM REMEDY
An…
Interim Applications
25.3 - HOW TO APPLY FOR AN INTERIM REMEDY
- An application may be made without notice if it appears to the court that there are good reasons for not giving notice.
- Application must be supported by evidence
- If made without notice, the evidence must state reasons why notice was not given.
NOTICE
- GR: Application notice must be served on each respondent.
- Wide-spread use of mobile devices makes it unlikely that there will ever be a practical reason why an applicant should not give at least an informal notice to a respondent.
- In proceedings where a PD applies, except in cases where secrecy is essential, applicant should take steps to notify the respondent informally of the application.
- An application for interim remedy may be made without notice if there are good reasons for not giving notice.
- Court should not entertain an application made without notice unless
a) giving notice would enable D to take steps to defeat the purpose of the injunction (eg freezing or search order) OR
b) there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act.
- Where there is to be a telephone hearing the application notice must be served as soon as practicable after it has been issued and in any event at least 5 days before the date of the hearing.
Disclosure duties for without notice applications
To grant an interim remedy in the form of an injunction without notice is to grant an exceptional remedyFor without notice applications, it is the duty of the applicant and those representing the applicant to make full and frank disclosure of all matters relevant to the application. This includes all matters of fact and law which are or may be adverse to the applicant.
- A high duty requiring the applicant to make full, fair and accurate disclosure of material information to the court and to draw the court's attention to significant factual, legal and procedural aspects of the case.
-- minimizes the risks of error inherent when court makes an order affecting the interests of party who has not had an opportunity to be heard and make representations.
- Duty not only to disclose material facts, but present fairly the facts which they do disclose.
- The duty is a continuing one, does not cease upon the making, on the applicant's ex parte application, of the order sought.
- Golden Rule - the party making the application must identify any material facts, and any which may constitute a defence or some ground for not granting the order sought.
Siporex Trade SA
1) Applicant must show the utmost good faith and disclose their case fully and fairly
2) They must, for the protection and information of the D, in their evidence summarize their case and the evidence for which it is based.
3) Identify crucial points for and against the application and not rely on general statements and the mere exhibiting of numerous documents.
4) investigate the nature of the claim asserted and the facts relied on before applying and must identify any likely defences.
5) Disclose all facts which reasonably or could or would be taken into account by the judge.
Duty of advocate:
- see that correct legal procedures and forms are used
- written skeleton argument and a properly drafted order are personally prepared and lodged with the court before the oral hearing
- At the hearing, the court's attention is drawn to unusual features of the evidence adduced, to the applicable law and to the formalities and procedures to be adduced.
Note: These duties are not restricted to matters of fact.
Where there is without prejudice communications, it may be necessary to refer to the fact of such communications, and even to the effect of them, if without such a reference, the court may be misled.
Disclosure duties for applications made on short notice
Application notice must be served as soon as practicable after it is filed and except where another time limit is specified, must be served at least 3 days before the court is to deal with the application.
- Even if period of notice is shorter than 3 days, court may direct that sufficient notice has been given and deal with the application.
- The fact that the respondent is represented on an urgent application for an interim injunction, appears at hearing and make submissions, does not absolve the C from his duty to make full and frank disclosure. However, there is no duty on C to provide duplicate information where at the hearing the respondent deals with all the factual and legal issues in the way in which the applicant would have obliged to have done in order to disclose his disclosure obligations.
EVIDENCE
GR: Evidence is to be witness statements, rather than affidavits unless court orders otherwise.
- A party may rely solely on matters set out in their statement of case or their application provided that they are verified by statement of truth.
-- If party make or cause to be made a false statement without an honest belief in the truth, may be held under contempt of court.
Interim remedy order hearings in private
GR: a hearing is to be in public
However, a hearing may be in private in the circumstances listed in r.39.2(3)
eg
- publicity would defeat the object of the hearing
- it is a hearing on an application without notice
- it would be unjust to any respondent for there to be a public hearing.
- Hearing involves confidential info
- Publicity would damage that confidentiality
- Court has inherent power to order that information should not be disclosed.
Discharging injunction for material non-disclosure
in interim injunction cases, if the duty of full and frank disclosure is not observed, the court may discharge the injunction. This is even if after full inquiry, the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.
- in the event of any substantial breach, the court strongly inclines towards setting its order aside and not renewing it , so as to deprive the defaulting party of any advantage that the order may have given them.
- In deciding what should be the consequences for any breach of duty, it is necessary for the court to take into account all the circumstances including
a) gravity of the breach
b) excuse/ explanation offered
c) severity and duration of prejudice occasioned to D including whether the consequence of breach were remediable and had been remedied
d) Overriding objective and the need for proportionality
Note: Whilst it is no answer to a complaint of non-disclosure to say that even if the relevant matters had been placed before the courts, the result would have been the same, it is a relevant consideration in the exercise of the court's discretion.
However, discharge of the order is not automatic on any non-disclosure being established of any fact known to the applicant which is found by the court to have been material.
- The borderline between material facts
-and non material facts may be somewhat uncertain one, particularly in heavy commercial cases.
- Further, applications without notice usually necessitate the dealing with and taking of instructions and the preparation of the requisite drafts in some haste.
Applications to set aside for material non-disclosure not to be made without proper reason.
- Wrong to allege material non-disclosure on slender grounds and seek discharge on the grounds of the most trifling errors. Whatever their means and means of their opponents, they are not entitled to conduct proceedings in a disproportionate manner.
- Further, circumstances can arise where the conflict of evidence on an alleged issue of non-disclosure is of marginal relevance, or that the issue itself is going to be a contested issue in the trial and is best resolved there.
- Applications to set aside freezing injunctions based on allegations of material non-disclosure should not be turned into substantial "satellite litigation".
- Generally, it is inappropriate to seek to set aside a freezing order for non-disclosure, where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing orders is liable to become a form of preliminary trial in which the judge is asked to make findings on issues which should be more properly reserved for the trial itself.
Discharge and re-grant of an injunction
Where serious and culpable non-disclosure sufficient to result in the court discharging an interim injunction granted without notice has been exposed and established, the question of whether a fresh injunction should be granted is likely to arise.
- There is a balancing task for the judge to perform. On the one hand, if justice requires that a fresh injunction should be granted to protect the applicant from harm that might befall them, it might be thought unjust to refuse it on the ground of non-disclosure.
- On the other hand, such is the importance of the duty that, in the event of any substantial breach, the court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given them.
23.1
Application Notice = document in which the applicant states his intention to seek a court order
Respondent = The person against whom the order is sought and such other person as the court may direct
23.3 An applicant must file an application notice.
- An application without an application notice can be made if:
a) there is exceptional urgency
b) where the overriding objective is best furthered by doing so
c) by consent of all parties
d) with the permission of the court
e) insufficient time to serve and make application orally at hearing
f) a court order, rule or practice direction permits
23.4 - A copy of the application notice must be served on each respondent.
- can dont serve a copy of application notice if permitted by
a) A rule
b) A practice direction or
c) A court order
23.5 - Where an application must be made within a specified time, it is so made of the application notice is received by the court within that time
23.6 - An application notice must state:
a) What order the applicant is seeking; and
b) Briefly, why the applicant is seeking the order.
-- Application notice must be verified by a statement of truth if applicant wishes to rely on it as evidence.
23.7 - A copy of the application notice must be served
a) as soon as practicable after it is filed; and
b) except where another time limit is specified in these rules/ PD, must in any event be served at least 3 days before the court is to deal with the application
- If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.
- When a copy of an application notice is served, it must be accompanied by:
a) A copy of any written evidence in support and
b) A copy of any draft order which the applicant has attached to his application.
- If an application notice is served but the time limits is not complied with, the court may direct that in the circumstances of the case, sufficient notice has been given, and hear the application.
Note: This rule does not require written evidence to be filed
a) if it has already been filed or
b) to be served on a party on whom it has already been served.
23.11 - Power of court to proceed in absence of a party
Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence
- IF they fail to attend hearing and the court makes an order at the hearing, the court may, on application or of its own initiative, re-list the application.
23.9 - Service of application where application made without notice
- Applies where the court has disposed of an application which is permitted to be made without serving a copy of the application notice.
- Where the court makes an order, whether granting or dismissing the application, copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person:
a) Against whom the order was made; and
b) Against whom the order was sought
- The order must contain a statement of the right to make an application to set aside or vary the order under rule 23.10
23.10 Application to set aside or vary order made without notice
- A person who was not served a copy of the application notice before an order was made, may apply to have the order set aside or varied.
- An application must be made within 7 days after the date on which the order was served on the person making the application.
25.2 - Interim application may be made at any time including before proceedings are started and after judgement have been given.
Court may only grant interim remedy before a claim has been made only if
a) The matter is urgent OR
it is otherwise desirable to do so in the interest of justice AND
b) a D may not apply for any order before he has filed either an acknowledgement of service or a defence.
Interim applications can be an interim direction or an interim order.
- Interim direction = formal requirements laid down by the court dealing with matters such as the times by which evidence must be exchanged between the parties and setting a timetable for preparing the case for trial.
- Interim orders includes remedies such as interim injunctions, security for costs, sanctions when a party fail to keep to the timetable laid down by a previous order or may grant permission to renew the claim form.
23.2 - Where to Make an Application
- GR: An application must be made to the court of County Court hearing centre where the claim was started
- If the claim has been transferred, , then make an application to the transferred court, unless there is good reasons to make the application to a different court.
- If the parties have been notified of a fixed date for the trial, an application must be made to the court where the trial is to take place.
- If the application is made before a claim has started, it must be made to the court where it is likely that the claim to which the application relates will be started unless there is good reasons to make an application to a different court.
-- BUT an application made in the county court before a claim has been stated may be made at ANY county court hearing centre, unless any enactment, rule or PD provides otherwise.
23.8 - Applications which may be dealt with without a hearing
The court may deal with an application without a hearing if
a) The parties agree as to the terms of the order sought
b) the parties agree that the court should dispose of the application without a hearing or
c) The court does not consider that a hearing would be appropriate.
23.12 - Dismissing a totally without merit application
- If the court dismissed an application and it considers that the application is totally merit:
a) The court's order must record that fact and
b) the court must at the same time consider whether it is appropriate to make a civil restraint order
NOTE; includes applications for permission to appeal or for permission to apply for judicial review.
25.2 - When can an order for interim remedy be made?
can be made at any time including before proceedings are started (when court issues claim form) and after judgement has been given.
- However, this is subject to any rule, practice direction or other enactment which provides otherwise.
- The court may grant an interim remedy before a claim has been made only if
a) The matter is urgent or
b) it is desirable to do so in the interest of justice and
c) unless the court orders otherwise, he has filed either an acknowledgement of service or a defence.
Where the court grants an interim remedy before a claim has been commenced, the court should give directions requiring a claim to be commenced. The court need not direct that a claim be commenced where the application is made.