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(5) Interim Applications, Issue:
Application notice (form N244)
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(5) Interim Applications
Interim Applications
Overview and Procedural Rules:
- Definition:
- Applications for orders/directions made to the court usually in the 'interim period' between the commencement of proceedings and trial
- some interim applications can be made before the commencement of proceedings
- When should it be made:
- According to OO, parties must take a reasonable approach to trying to agree matters to avoid the need for an application to court or to make such application less contentious
- But as soon as it becomes apparent its necessary/desirable to make an application, party should apply (23 PD 2.5)
- Parties are under a specific obligation to 'bunch' their interim applications (23 PD 2.6). If a hearing is fixed for whatever reason, its up to the parties to issue any necessary applications to ensure that outstanding matters get dealt with at a single hearing
Procedures:
- Issue:
- Party making application whether or not they are C or D is called the applicant. The other party is the respondent
- Process for making applications begin by filing application notice (Form N244) at court. Application notice states (CPR 23.6):
- (1) Who is making the application
- (2) What order the applicant wants
- (3) Why the applicant is asking for that order
- (4) What information the applicant relies on in support of that application
- A court fee is payable to issue the application notice. Application should be made to court in which the main claim is presently being dealt with or in the case of pre-action applications, is likely to be dealt with (CPR 23.2)
Evidence, draft order and issue (cont):
- Sometimes CPR provides that a particular type of application must be supported by a particular evidence. But even in cases where evidence is not strictly required, its advisable to provide evidence (23 PD 7.1) to satisfy the court that the order should be granted
- Evidence can be given in 1 of 3 ways:
- In the application notice itself (Part C, in which the statement of truth must also be completed (23A PD 7.5)
- By referring to the existing SOC
- In a witness statement (or, if required, affidavit)
- Applicant takes/sends to the court the application notice, evidence and draft order.
- The court issues the application and provides a notice indicating the date and time that the application will be heard by the cort
- Serving the application:
- Application notice, note from the court indicating the date and time of the hearing, evidence and draft order must be served on the other party after the application has been issued by the court (CPR 23.7)
- Court may serve the application notice and supporting documentation but in practice applicant's solicitor would usually do it for certainty and to retain control
- General rule: Service must be effected as soon as practicable after the application is filed and not less than 3 CLEAR DAYS before the application is heard (CPR 23.7)
- Some special applications have their own special time limits for filing evidence e.g. summary judgement (CPR 24)
- Rules to calculate time apply to these deadlines (CPR 2.8)
- Further evidence:
- The respondent may wish to file evidence in the form of a witness statement (or if CPR require it an affidavit). This evidence must be filed and served ASAP (23A PD 7.2) and in accordance with any specific timings stated by court when it issued the application notice
- If applicant wishes to bring further evidence in reply to the respondent's evidence, this must be filed and served ASAP (23A PD 7.3) and according to specific timings stated by court
- A statement of cost relating to the application should also be filed and exchanged no less than 24 hours before the hearing (44 PD 9.5)
- Hearing:
- Most interim applications are dealt with at a hearing
- According to OO, court may order that a hearing should take place remotely or partially remotely (23 PD 6). Most commonly if the hearing is expected to last 2 hours or less it may be conducted remotely
- Is possible for matters to be dealt with the absence of a hearing if (CPR 23.8):
- The parties agreed to the terms of the order (in which they should send in a 'consent order' - a order in the agreed form, signed on behalf of each party)
- The parties agree there should be no hearing; or
- The court does not consider a hearing appropriate
- Once the court has considered the application, the court will make a decision and the order will be drawn up, sealed and served by the court
Without notice applications:
- This is a process without serving application notice on the respondent. This is allowed if (23 PD 3):
- (1) there is exceptional urgency (e.g. remedy is needed immediately)
- (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, and party don't have enough time to serve an application notice. In this case, party should still inform the other party and the court (if possible in writing) as soon as he can of the nature of the application and the reason for it
Procedural safeguards:
- To mitigate the risks of unfairness in making an application without notice:
- (1) The application must explain why no notice is given
- (2) The applicant must draw to the court's attention arguments and evidence in support of the (absent) respondent's position
- (3) The applicant must serve the respondent ASAP after the hearing whether or not the court has granted the relief. Documents the applicant must serve on the respondent are (CPR 23.9):
- The application notice
- The evidence in support
- (4) The court order must contain a statement of the respondent's right to make an application to set aide or vary the order. Any application to set aside must be made within 7 days of the order being served on the other party (CPR 23.10)
Summary judgement
Definition:
- The purpose for a summary judgement is to enable the court to dispose of claims or issues without the need of a full trial (CPR 24.1)
- If a summary judgement is granted on an issue, that issue is no longer considered at trial which saves costs
Summary judgement also furthers the OO because it allows the court to deal with weak cases/issues proportionately and expeditiously
- Either party can apply for summary judgement if it considers that the other party's position in relation to the claim or particular issues is very weak
What is the difference between summary judgement and strike out:
- Summary judgement
- The court can give a summary judgement against a C or D where the party has no real prospect of succeeding on their claim or defence (CPR 24.3)
- Court can also strike out the whole or part of a SOC which discloses no reasonable grounds for bringing/defending a claim (CPR 3.4(2)(a))
- Default judgement:
- Default judgement is given when D fails to file an acknowledgement of service and/or a defence according to CPR time limits
- C can apply for default judgement via request or application (depending on nature of claim). Court won't consider merits of the case when ordering judgement in default
Grounds for summary judgement:
- (1) The party against whom the application is made has no real prospect of succeeding on the claim, defence or issue; and
- "No real prospect" - means that position is fanciful, imaginary/false
- (2) There is no compelling reason why the case or issue should be disposed of at trial
- "No compelling reason" e.g. D needs more time to investigate, expert evidence is required, multi-party litigation etc
The evidence required:
- The evidence supporting an application for summary judgement must address the grounds set out above
- The application notice/supporting evidence (usually a witness statement) must also:
- Identify concisely any point of law/provision in a document on which the applicant relies; and
- State the application is made because the applicant believes that on evidence the respondent has no real prospect of success and knows of no other compelling reason why the claim/issue should be disposed at trial
Who can apply for summary judgement:
- Claimant:
- After D has filed acknowledgement of service or defence (or earlier with the court's permission) (CPR 24.4)
- Defendant:
- Can apply anytime after proceedings have commenced
- Court:
- Can fix hearing of its own initiative (CPR 1.42(2)c) and CPR 3.3)
- Ideally C or D should apply for summary judgement either before or at the same time as filing the Directions Questionnaires to avoid unnecessary costs (26 PD 11)
- If application is made on filling Directions Questionnaires, court will delay allocating the matter to a track until after the summary judgement hearing
When to apply for summary judgement:
- The effect of a summary judgement application is to create a pause in the proceedings while the application is being decided so that:
- If a party applies for a summary judgement before a D has filed a defence, the D by or against whom the application is made don't need to file a defence before the hearing (CPR 24.4)
- If party applies for summary judgement, then normal rules relating to interim applications apply
The application notice:
- The application notice must:
- Include a statement that its an application fo rsummary judgement;
- Draw the respondent's attention to their right to rely on evidence opposing the application (CPR 24.5)
- These provisions make it clear to the respondent what is at stake in the application and how the respondent can oppose the application.
- This is very important because an application for summary judgement has very vigorous consequences
Potential orders at the summary judgement hearing:
- Dismissal of the application:
- The application fails. Issues continue to trial, court will give directions to take the claim forward
- Dismissal of the claim:
- If D applies for summary judgement and succeeds, claim is dismissed, D has 'won'
- Judgement of claim:
- If C applies for summary judgement and succeeds, then judgement is entered for C, C has 'won'
- Conditional order:
- Judge has decided that the respondent may succeed but its improbable that it will do so: court will refuse summary judgement and allow the respondent to continue only subject to conditions ordered by the court, like paying a sum of money into court
Interim payments
Definition:
- An interim payment is a payment on account of damages, debt or other sum (except costs) which a D may be held liable to pay to a C (CPR 25.1(1)(I)
- C may wish to ask for an interim payment to assist it financially in the interim period prior to settlement/trial, e.g. in a personal injury claim. Any payment would be made on account of damages
Note: that an application for interim payments is made by a claimant
Conditions to be satisfied:
- Court will make an order where any of the following conditions are satisfied:
- (1) D has admitted liability to pay damages (or some other some of money) to C
- (2) C has obtained judgement against that D for damages to be assessed (or for sum of money other than costs) o be assessed
- (3) When claim went to trial, C would obtain judgement for a substantial amount of money against D from whom he is seeking an order for interim payment, whether or not D is the only D or one of a number of Ds to the claim
Evidence:
- Applicant must provide evidence alongside its application. Evidence must deal with the following (CPR 25.22(1)):
- The reasons for believing that the conditions for making an interim payment are satisfied
- The sum of money for which final judgement is likely to be
- The sum of money sought by way of an interim payment
- The item 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 pst and future loss
- In claims under the Fatal Accidents Act 1976, details of person(s) on whose behalf the claim is made and the nature of the claim
- Any documents in support of the application should be exhibited, in personal injuries claims, the medical report (CPR 25.22(2))
Procedure:
- C seeking interim payment must make a request for a voluntary payment from D first. If D does not agree (e.g. if its defending the claim), C can make an application to the court for an interim payment (CPR 25.20)
- Although C can make a request to D for a voluntary interim payment at any stage in the proceedings (including pre-action), C cannot apply to the court for an interim payment before the end of the period for the D filing an acknowledgement of service (CPR 25.21(1))
- C can make more than one application for an interim payment order.
- If C applies for an interim payment, then the normal rules relating to interim applications apply subject to modifications/additional requirements set out on in diagram.
- Court must not make an interim payment of more than a reasonable proportion of the likely amount of the final judgement, considering any contributory negligence, set-off or counterclaim - (CPR 25.20(1)). It may order payment in installments
Restrictions:
- Unless D agrees, an interim payment made by a D in the course of the proceedings (whether voluntarily or by court order) will not be disclosed to the trial judge until all questions of liability and quantum have been decided (CPR 25.25)
Summary:
- An interim payment is an order that can be applied for by C
- An interim payment is a payment on account of damages, debt or other sum which D may be held liable to pay to C
- If C wishes to apply for interim payment it must satisfy the court of one of the conditions in CPR 25.23
- The procedure provides that C must serve the application notice and evidence on D at least 14 days before the interim hearing
- Any interim payment order must be of no more than a reasonable proportion of a likely final judgement
- An interim payment does not get disclosed to the judge at trial
Security for costs
Definition:
- An application made by a person in the position of defendant (application) who is concerned that C (the respondent) won't be willing/able to pay D's costs should the claim be successfully defended (CPR 25.26).
- Court can order that security be given in various ways. But usually, it requires payment into court by C, so that those funds are available to meet any costs order later made in D's favour
- Note: security for costs is only for costs of the claim, not the level do damages which may be warded
- Application can be made:
- By D against C (usual case)
- By C against D in respect of a counterclaim
- By a 3rd party against D in respect of an additional claim (CPR 20)
Grounds for security for costs:
- D must satisfy the court of 2 matters before an order for security for costs can be made:
- (1) Having regard to all circumstances of the case, its just to make an order (CPR 25.27(a)); and
- (2) One or more of the prescribed conditions in the rules are satisfied (CPR 25.27)
- Court will also consider the OO, and whether dealing with the case is just and proportionate costs by making security cost order
Prescribed conditions for security for costs:
- The claimant is resident out of the jurisdiction - CPR 25.27(b)(i))
- The 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 - (CPR 25.27(b)(ii))
- The claimant has taken steps in relation to its assets that would make enforcement of a costs order against it difficult - CPR 25.27(b)(vi))
- Other grounds:
- C has changed address since claim was commenced with a view to evading the consequences of the litigation (CPR 25.27(b)(iii)
- C failed to give address in the claim form or gave an incorrect address (CPR 25.27(b)(iv)
- C is acting as a nominal C and there is reason to believe it will be unable to pay the D's costs if ordered to do so (CPR 25.27(b)(v)
C is resident out of the jurisdiction - CPR 25.27(b)(i):
- The C is resident out of the jurisdiction
- Meaning of resident:
- For an individual this is their habitual or normal residence
- For a company this is where the company's central management and control is exercised and its usually, but not necessarily, where its incorporated
- Meaning of out of jurisdiction:
- This means NOT in England and Wales. The reason for this requirement is that D may have greater difficulty enforcing any costs order if C is not in England or Wales
'Impecunious claimant company' condition - CPR 25.27(b)(ii):
- C is a company and there is reason to believe that it will be unable to pay D's costs if ordered to do so
- C must be an impecunious company; not an impecunious individual
- D must show: a) the company's inability to pay costs; and b) the amount of the likely costs
- D must show the company 'will be unable (as opposed to 'may be unable) to pay its debts when the order is made against it. But D does not have to show on a balance of probabilities that C's company is unable to pay -
- D may be able to show that there is 'reason to believe' that C's company will be unable to pay even if C's company can adduce substantial evidence to the contrary (Jirehouse Capital v Beller [2008]) This makes security for costs more available to Ds
"Claimant moving assets' condition - CPR 25.27(b)(vi):
- Purpose of this condition is to prevent injustice to a D where the assets available to enforce any order for costs have been or are being put beyond the reach of enforcement
- e.g. dissipation of assets, the transfer oversees or into names of 3rd parties or the transfer to places unknown to D
Court's discretion:
- Even if one of the prescribed conditions is made out, court is not obliged to give security; security will only be granted by the court if:
- [Its satisfied, having regard to all circumstances of the case, that its just to make such an order]
- Main considerations:
- Court will take into account the ability of the respondent to comply with any order for security for costs
- Court should not normally make the continuation of C's claim dependent on a condition which is impossible for C to fulfill, because it effectively restricts C's access to the justice system
- An impairment of C's right of access which is disproportionate to the need to protect D is likely to be in breach of Art 6 ECHR (right to a fair trial)
- Court has difficult task of balancing 2 competing injustice:
- Potential injustice to C in being prevented from carrying on with the claim if it cannot pay the security
- The injustice of D being at risk on costs if no security is provided
- This is likely to be particularly problematic where the basis for application is the C's impecuniousity
Other considerations:
- Apart from the ability to comply with the order, court will look at other factors (Sir Lindsay Parkinson v Triplan [1973]). These can inclued:
- Admission of liability by D or substantial open offers (those the court can be made aware of) will make D's application less likely to succeed
- Delay also makes the application less likely to succeed - the application should be made promptly, as soon as facts underpinning the application are known
- A claim which appears to not be genuine, or which has little prospect of success will make D's application more likely to succeed
- If D has itself been responsible for C's financial difficulties, this will make the application less likely to succeed
- If it appears that D is using the application oppressively or to stifle a genuine claim by C, this will make the application less likely to succeed
Procedure:
- If a party applies for security for costs, then the normal rules relating to interim applications apply
- Note that:
- The application notice should state which ground(s) or enactment applies
- The application must be supported by written evidence (CPR 25.26(2)). Evidence will normally be given by way of witness statement which should cover:
- The ground e.g. for the impecunious company ground, the witness statement is likely to exhibit the accounts to show the C is unable to pay
- The factors in the exercise of court's discretion
- The likely costs to trial e.g. the witness statement is likely to exhibit a statement of costs or to refer to an approved costs budget
- The amount of security requested
Amount of security:
- If court makes an order for security for costs it will determine the amount of security + manner in which and the time within the security is given (CPR 25.26(3)). The amount is entirely within the court's discretion and the court will fix a sum it thinks just taking into account:
- The amount of D's likely costs
- The security can be for the whole action or up to a point in time e.g. up to disclosure
- The amount can cover costs incurred (including pre-action) and future costs
- A deduction can be made for the likely reduction upon assessment of costs or the possibility of settling
- Other factors e.g. delay may mean that security is not given for costs already incurred but is given for future costs
Type and timing of security:
- The manner in which security is given can be:
- A payment into court
- A payment to D's solicitor
- A bank guarantee
- An undertaking to pay costs
- The most frequent order is for the sum to be paid into court by a required date
Interim injunctions
- An injunction is an order by 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, so breach can result in a fine and/or imprisonment
- An Interim injunction is a temporary measure taken at an early stage in the proceedings (including pre-action) before trial and before any final decision
- This is done based on the merits of either party's case to retrain the respondent from causing irreparable/immeasurable damage to the applicant by continuing conduct/ceasing conduct that has led to the dispute. Its usually made in circumstances of urgency and lasts until trial/further order
- A perpetual injunction is a final injunction (usually made at trial)that continues with no limitation of time.
Type of interim injunction:
- Prohibitory injunction:
- Requires the respondent to refrain from doing an act
- e.g. an employer has brought a claim against an employee for breaching a confidentiality clause in an employment contract. Employer obtains an interim prohibitory injunction preventing specified uses of information pending trial
- Mandatory injunction:
- Requires the respondent to do a specific act
- e.g. In a claim alleging that a supplier of a computer software failed to deliver up to software at the end of the parties; relationship. C obtains an interim mandatory injunction requiring the software to be delivered up to pending trial
- Quaia timet injunctions:
- Allow both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed
- e.g. in a claim alleging that the threatened closure of a bank account would be a breach of statutory duty, customer obtains an interim mandatory injunction requiring the bank to keep the account open
Step 2: Would damages be an adequate remedy for a party injured by the court's grant of, or failure to grant, an injunction?
- Court must consider the issue from the applicant's perspective and depending on the outcome, then consider the same issue from the respondent's perspective:
- Step 2(a) - applicant's perspective - court will refuse an injunction if the applicant could be adequately compensated by damages for any loss caused by the refusal to grant them an interim injunction.
- But damages may be inadequate if respondent has no means of paying them or the harm being caused is irreparable, cannot be quantified, or is serious and likely to continue
**Step 2(b) - respondent's perspective** - If injunction is granted, respondent will be prevented from doing something or required to do something until trial - but it might transpire that the injunction should never have been granted, most likely if applicant fails at trial
- 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
Step 3: The balance of convenience"
- Step 3 - if it appears that damages would be adequate for neither party, then the court will consider a very broad range of factors to try to ascertain whether granting or not granting the injunction carries the lesser risk of injustice (i.e. to ascertain where the 'balance of convenience' lies)
Step 1: Is there a serious question to be tried?
- An injunction is not a cause of action - its a remedy. Therefore, an applicant cannot sue for an injunction. Application must have a pre-existing cause of action
- Court must be satisfied that this is not "frivolous or vexatious" and that "there is a serious question to be tried".
- In many cases this is not a difficult hurdle to surmount. But if this test cannot be met, the injunction will generally be refused (and the court won't go to consider steps 2 and 3)
Procedure
Undertakings:
- Court will only grant interim injunction only if applicant offers an cross-undertaking to pay damages to the respondent for any loss sustained by reason of injunction if it subsequently held that the applicant ought not to have been granted an interim injunction
- e.g. proceedings are discontinued, or the injunction is discharged before trial, if its decided at trial that applicant had not been entitled to restrain the respondent from doing what it was threatened to do
- Cross-undertaking is made in court. Its there for the protection of the respondent, but court can also require (as a condition for granting the injunction) an undertaking to be given for the protection of any other person who may suffer loss because of the order (CPR 25.9(5))
Without notice safeguards:
- Applicant for an interim injunction can be made without notice if this is justified. If application is made without notice and injunction is granted, it'll only be granted for a limited period until court fixes a 2nd hearing called the 'return date'.
- Respondent will be given a notice of that hearing and the opportunity to attend it to make representations. And at 2nd hearing, court will make the following orders:
- Maintain order (to keep the injunction in place until the trial fo the substantive matter)
- Discharge the injunction vary the terms of the injunction
- Enforce the applicant's undertaking in damages if it transpires that the injunction should not have been granted
- Accept an undertaking by the respondent not to do the acts in question, in place of the injunction
cont:
- In case of a without notice application, applcant must make a full and frank disclosure of all matters of fact/law relevant to the application - including those which are/may be adverse to the applicant.
- This is needed for any interim application made without notice and its importance is highlighted when interim injunctions are at stake
- The applicant's legal representatives must prepare a full note of the hearing ASAP and this should also be served on the respondent (and any other party affected by the order) without delay.
- Full note of the hearing ensures the respondent knows what case they have to meet at the next, with notice, hearing
Applications before a claim is issued;
- In case of exceptional urgency, not only can a party apply for an interim injunction without notice but a party can apply before a claim form has even been issued
- Court will only grant an interim remedy before a claim has been issued if the matter is (CPR 25.2(2)):
- Urgent; or
- Its otherwise desirable to do so in the interest of justice
- In these situations, applicant must undertake to the court to issue a claim form immediately
Equitable and discretionary:
- The guidelines just stated be considered in the context of an injunction beign an equitable remedy, so equitable principles apply, including that:
- (1) an injunction won't be obtained when it would serve no practical purpose
- (2) court might refuse to grant an injunction if the applicant has not come to court with 'clean hands'
- (3) Excessive delay may lead to a refusal of the application
- An injunction is also a discretionary remedy so there's no automatic right to an injunction just because all the guidelines that follow have been met
- An application for an interim injunction must be supported by written evidence setting out facts justifying the relief sought (CPR 25.7) keeping in mind the guidelines and considerations set out above.
- Additionally, application made without notice, the evidence must state the reason why notice has not been given (CPR 25.3)
Issue:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Fee
Service:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Notice of hearing date
Further evidence:
- Respondent files at court and serves on the applicant evidence ASAP
- Applicant files at court and serves on the respondent evidence in reply ASAP
- Both parties file and exchange statements of costs not less than 24 hours before hearing
-
- As soon as practicable but no less than 3 clear days
Issue:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Fee
Service:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Notice of hearing date
Further evidence:
- Respondent files at court and serves on the applicant evidence
- Applicant files at court and serves on the respondent evidence in reply
- Both parties file and exchange statements of costs not less than 24 hours before hearing
-
- Service at least 14 days before the hearing
Issue:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Fee
Service:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Notice of hearing date
Further evidence:
- Respondent files at court and serves on the applicant evidence
- Applicant files at court and serves on the respondent evidence in reply
- Both parties file and exchange statements of costs not less than 24 hours before hearing
-
- Service at least 14 days before the hearing