Prep 4 Interim Applications

Purpose of Summary Judgment under CPR 24.1

To enable the court to dispose of claims or issues without the need for a full trial

Purpose of an Interim Payment under CPR 25.1(1)(k)

An account of damages, debt, or some except costs which a defendant may be liable to pay to a claimant

Purpose of Security for Costs under CPR 25.12

May be made by a person in the position of defendant who is concerned that the claimant will not be willing or able to pay the defendant’s costs should the claim be successfully defended

What is the purpose of an interim injunction?

An order of the court requiring a party to do or refrain from doing a given act

When should an interim application be made under 23A PD 2.7

As soon as it becomes apparent that it is necessary or desirable to make an application

Procedure for making an interim application

• Issue

• Service

• Further Evidence

• Hearing

Issuing an Interim Application

• Application notice (form N244)

• Supporting evidence

• Draft order

• Fee

Service for an Interim Application

As soon as practicable but not less than 3 clear days before the hearing

Hearing Interim Applications

May occur in a hearing, over telephone or without a hearing where both parties agree and consent to the order

Requirements for a without notice Application under 23A PD 3

• Exceptional urgency

• Overriding objective is furthered by doing so

• All parties consent

• Court gives permission

• Permitted by court order, rule or practice direction

• A date for hearing has been fixed

Procedural Safeguards for Without Notice Hearings

• Applicant must explain why no notice is given

• Attention must be drawn to respondent’s potential arguments and evidence

• Applicant must serve the respondent asap after hearing

• Respondent must be made aware of their right to set aside or vary the order

Grounds for Summary Judgment

The claimant or defendant has no real prospect of success and there is no other compelling reason for the trial to be heard

When can a claimant apply for summary judgment?

After the defendant has filed an acknowledgment of service or defence

When can a defendant apply for summary judgment?

Anytime after proceedings have commenced or before acknowledgement of service or defence

Service for a Summary Judgment

Service must be at least 14 days before the hearing

Potential Orders at a Summary Judgment Hearing

• Dismissal of the Application

• Dismissal of the Claim

• Judgment on the claim

• Conditional Order

Conditions for an Interim Payment Application

• Defendant has admitted liability to pay damages

• Claimant has obtained judgment against defendant for damages to be assessed

• If the claim went to trial, the claimant would obtain a judgment for a substantial amount of money from the defendant

Evidence required for an Interim Payment Application

• Reasons for believing the conditions are satisfied

• Likely sum of money for final judgment

• Sum of money sought for interim payment

• Items or matters in respect of which the interim payment is sought

• Other relevant matters

Procedure for an Interim Payment Application

• Claimant should make a request for a voluntary payment from the defendant first

• Cannot apply before defendant files an acknowledgment of service

• Claimant may make more than one application

• Must be of reasonable proportion to likely final judgment

Service of an Interim Payment

At least 14 days before the hearing

Restrictions on Interim Payments

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

Who may make a Security for Costs application?

• By a defendant against the claim

• By a claimant against the defendant in respect of a counterclaim

• By third party against the defendant in respect of an additional claim

Grounds for Security for Costs

• It must be just to make an order

• At least one of the prescribed conditions must be satisfied

Prescribed Conditions for Security for Costs

• Claimant is a resident out of the jurisdiction, but not 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 relating to assets which would make enforcement of a cost order difficult

Condition: Claimant is a company who may be unable to pay the defendant’s costs

The defendant must show:

• The company’s inability to pay costs; and

• The amount of the likely costs

• The company will be unable to pay its debts when the order is made against it

Court’s discretion for Security for Costs

Court must be satisfied that it is just to make an order

Other Considerations for Security for Costs

• Admission of liability by the defendant

• Delay

• Little prospect of success

• If the defendant is responsible for the claimant’s financial difficulties

Procedure for Security for Costs Application

The normal rules relating to interim applications apply

Amount of a Security for Costs

Can cover:

• Defendant’s likely costs

• The whole action or up to a point in time

• Costs incurred and future costs

Types of Interim Injunction

• Prohibitory

• Mandatory

• Quia timet

Evidence required for an Interim Injunction

• Is there a serious question to be tried?

• Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?

• Where does the balance of convenience lie?

Is there a serious question to be tried?

The applicant must have a pre-existing cause of action

Procedure for an Injunction Application

Same as any other interim application as well as:

• Cross undertaking in damages

• Without notice safeguards

• Applications can be made before the claim is issued