🗣️ DR 3: Interim Applications

Question 1

What are interim applications?

Answer 1

apps made after litigation starts but before trial

Question 2

Aim of interim applications

Answer 2

to ensure case proceeds as quickly and effectively to trial as possible

Question 3

Examples of interim applications to ensure youre complying with procedural matters?

Answer 3

• Permission to serve claim form out of jurisdiction
• Challenging courts jurisdiction
• Permission to amend a statement of case
• Permission to make an additional claim

Question 4

Examples of interim applications to request more time

Answer 4

• To serve a claim form
• To serve a list of documents

Question 5

Examples of interim applications to assist trial preparation?

Answer 5

• Seek disclosure of docs
• Part 18 request for further info

Question 6

Examples of interim applications to consider penalties

Answer 6

• Apply for sanction for opponent failing to meet deadline
• Apply for relief from sanction

Question 7

Form used to make interim applications

Answer 7

N244

Question 8

What should parties do before making an interim application?

Answer 8

seek to resolve matters between themselves

Question 9

Where to apply to make an interim application?

Answer 9

court where claim started or has been transferred

Question 10

What should an interim application include and what should be attached?

Answer 10

1. What order is being sought and why
2. Evidence on N244 or witness statement (although no specific requirement to provide)
3. time estimate of hearing of the application
4. Statement of truth
   Attach:
5. Relevant docs as exhibits if necessary
6. Draft of the order sought (except in the most simple of apps)

Question 11

Who should make the witness statement, what should it include (N244)

Answer 11

Who: person best able to address the relevant points from personal knowledge (may be client or sol)
Include:
* Facts/evidence in support of app
* Anticipate opps case
* Provide sufficient detail to persuade court to make order

Question 12

When should an application notice for an interim application be served on the opponent?

Answer 12

at least 3 clear days before court hearing (ex. Date of service, hearing, weekends, bank hols)

Question 13

What is a consent order?

Answer 13

□ If parties agree on order required, they can apply for an order to be made by consent without a hearing
□ must provide court with any material it needs to be satisfied its appropriate to make the order (usually letter will suffice)

Question 14

When can an interim application be made without notice to the other party?

Answer 14

• Exceptional urgency
• The overriding objective of the CPR would be best achieved without notice (ie. Freezing assets/searching premises)

Question 15

If making an interim application without notice to the other party, what must be done?

Answer 15

□Evidence must explain why notice wasn’t given
□ Applicant has duty of full and frank disclosure=cant take advantage of respondents absence at hearing and must draw courts attention to evidence/arguments they reasonably anticipate the respondent would want to make

Question 16

If making an interim application without notice to the other party, what must be served on the other party as soon as practicable?

Answer 16

1. Court order
2. Application notice
3. Any supporting evidence

Question 17

If an order is made following an interim application without notice, wha† can the respondent do?

Answer 17

apply to set aside/vary order within 7d service

Question 18

When will interim applications be conducted by phone?

Answer 18

With a time estimate of 1h or less (UNLESS without notice)

Question 19

What possible costs orders can be made at the end of an interim application and when does each one apply?

Answer 19

1. [named party] costs: Named party entitled to their costs within 14d, applies when theres a clear winner
2. Costs in the case Neither party can recover,costs decided at conclusion of proceedings
(eg. where conditional order made)
3. No order as to costs: Each party pays own costs (eg. where neither party at fault)

Question 20

Summary judgement

What are the grounds for applying for a summary judgement?

Answer 20

24.3 The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if—
(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

wording of cpr

Question 21

Summary judgement

What are the most common compelling reasons to proceed to trial?

Answer 21

◊ more time for investigation
◊ Highly complicated/technical
◊ hear from witness/expert evidence (particularly if central issue is disputed oral evidence)

(respondent should focus on est compelling reason to go to trial NOT argue complete case)

Question 22

Summary judgement

When/who can make an application for a summary judgement?

Answer 22

By either party
Defendant: at any time
Claimant: After D has filed an acknowledgement of service OR defence (unless has court permission)

Question 23

Summary judgement

When is permission required for applying for a summary judgement?

Answer 23

where C wants to apply before D filed acknowledgement of service or defence

Question 24

Summary judgement

What form is used to apply for a summary judgement?

Answer 24

Form N244 and (usually) witness statement

Question 25

# Summary judgement If a party has applied for a summary judgement, what notice must the respondent be given and further time limits for evidence?

Answer 25

Respondant must be given 14d notice of hearing date Respondant file/serve written evidence at least 7d before hearing If applicant wishes to rely on further evidence, file at least 3d before hearing

Question 26

# Summary judgement Possible orders on application for summary judgement

Answer 26

1) Judgement on claim=claim succeeded, matter proceeds to enforcement 2) Striking out/dismissal of claim-D succeeded 3) Application dismissed=proceed to trial 4) Conditional order: possible but not probable claim/defence may succeed=party can continue with litigation if pay sum of money to court/take specified steps in resolving)

Question 27

# Summary judgement When will the court make a conditional order on application for a summary judgement?

Answer 27

Its **possible but not probable the claim/defence may succeed** =party can continue with litigation if pay sum of money to court/take specified steps in resolving

Question 28

# Summary judgement Where court dismisses/doesn’t completely dispose of claim after an application for summary judgement, what they do?

Answer 28

Give case management directions usually given as to future conduct of case

Question 29

# Summary judgement What happens with costs if a claimant/defendant succeeds in obtaining summary judgement?

Answer 29

CLAIMANT: Specified sum-court may award costs (usually fixed) Unspecified sum-C granted costs as winner (fixed on fast, int track, summarily assessed on multi) DEFENDANT: Entire claim struck out-C pay costs of whole claim (fixed/summarily assessed depending on track) Application dismissed-proceedings continue as normal

Question 30

# Interim injunction Who can apply for/be granted an interim injunction

Answer 30

Either party

Question 31

# Interim injunction When can you apply for an interim injunction?

Answer 31

a. Any time after proceedings commenced b. OR before in exceptional cases if court satisfied: 1. matter is urgent 2. its in interests of justice

Question 32

# Interim injunction How long will an interim injunction remain in force for?

Answer 32

until matter comes to trial

Question 33

# Interim injunction What type of remedy is an interim injunction?

Answer 33

Discretionary remedy when damages not appropriate

Question 34

# Interim injunction Consequences of breach of interim injunction?

Answer 34

punishable as contempt of court

Question 35

# Interim injunction Aim of interim injunction

Answer 35

maintain current position till trial

Question 36

# Interim injunction When deciding if to grant an interim injunction, what will the court determine?

Answer 36

American Cyanamid Guidelines Whether: 1. Serious question to be tried? 2. Damages are an adequate remedy for either side? 3. Balance of convenience lies in favour of granting or refusing? 4. Any special factors

Question 37

# Interim injunction What is a cross undertaking?

Answer 37

If an injunction is granted, applicant must undertake to court to pay any damages to affected party sustained by injunction if it transpires the injunction shouldn't have been granted

Question 38

# Interim injunction What docs ect are needed to apply for an interim injunction?

Answer 38

* Application notice * Evidence in support * (Usually) witness statement

Question 39

# Interim injunction Can you obtain an interim injunction without notice?

Answer 39

Yes if good reason (eg. Insufficient time/prevent destroying evidence)

Question 40

# Interim injunction What are the 2 forms of injunction without notice?

Answer 40

1. Court fixes date for further hearing with all parties present, so lasts until that date and will be set aside if D argue shouldn’t be granted 2. It tells D they may apply on notice for order to be varied/set aside and remains in place until trial/further order

Question 41

# Interim injunction Examples of injunctions that can be made without notice?

Answer 41

1. **Freezing injunctions**=prevent removing assets from jurisdiction 2. **Search orders**=Allows respondents premises to be searched by applicant Where app believed they have docs/prop belonging to them

Question 42

# Interim injunction What must the court be satisfied of to order a freezing injunction vs a search order?

Answer 42

**Freezing injunction:** 1. app has a good arguable claim 2. and there's a real risk respondent will dispose of their assets **Search order:** 1. App has strong case 2. and will suffer serious harm if order not made 3. and resp has incriminating materials in their possession that cant be obtained via other means

Question 43

# Interim payment What is an interim payment?

Answer 43

an advance payment on account of any damages/debt/other sum (EXCLUDING COSTS) that a D may be liable to pay

Question 44

# Interim payment Who can make an application for interim payments?

Answer 44

Claimant only?

Question 45

# Interim payment What is the aim of interim payments?

Answer 45

for C with strong case to avoid financial hardship whilst case ongoing

Question 46

# Interim payment WHEN can a C make an application for interim payment? (as in when in the proceedings)

Answer 46

AFTER time for acknowledging service has expired AND 1 more during proceedings

Question 47

# Interim payment Time limit for service of application notice for interim payment?

Answer 47

at least 14 clear days before hearing date

Question 48

# Interim payment What must evidence for an interim payments application set out?

Answer 48

* Amount requested * What it will be used for * Amount likely to be awarded at final judgment * Reasons for believing the grounds required by the CPR are satisfied

Question 49

# Interim payment If the respondent wishes to rely on evidence to counter an application for Interim Payments, what are the time limits?

Answer 49

Serve it at least 7d before hearing (App can respond with further evidence at least 3d before hearing)

Question 50

# Interim payment What are the 3 grounds for establishing entitlement for an interim payment?

Answer 50

1. D has admitted liability 2. OR C has obtained judgement against D for damages to be assessed or for a sum of money 3. OR Court satisfied D would obtain judgment for a substantial amount of money (other than costs) if case went to trial)

Question 51

# Interim payment When is the only time an application for interim payment is likely to be made?

Answer 51

if there is likely to be a delay in the assessment of damages

Question 52

# Interim payment Having est entitlement to interim payment, what does the court have discretion in relation to?

Answer 52

a) **Should an order for interim payment be made?** (if issues complicated, may not) b) If yes, what should **amount** be? (will consider contrib neg and counterclaim) -will be a reasonable proportion of final judgement

Question 53

# Interim payment Will the trial judge be told of an interim payments order?

Answer 53

No until after determined all issued of liability and quantum unless D consents