Interim Applications Notes

INTERIM APPLICATIONS

WHICH COURT?

• general rule - application must be made to court where claim is presently being dealt with

• application after judgment - court dealing with enforcement

• pre-action remedies

  • usually - court where substantive proceedings likely to be brought (unless good reason for applying to different court)

  • designated money claims - any coco

WHICH JUDGE?

• general rule - master, DJ, HC judge

  • interim injunctions

    • judge who has jurisdiction to try claim; OR

    • HC master / HC DJ by consent; OR

    • coco DJ if has trial jurisdiction (small claims / fast track)

WHEN CAN AN ORDER BE MADE?

• at any time (including pre-action AND after judgment)

WHEN TO APPLY?

• ASAP after A has come on to court record:

  • C - issued claim form

  • D - filed AoS / defence

• usually inform court of intention to apply in DQ

• BUT can apply at any time, even after trial

Restrictions on timing

• SJ - after D has filed AoS / defence (normally at / before filing DQ)

• interim payment - after expiry of time for filing AoS / defence

• interim remedies - after D has filed AoS / defence

Pre-action

• C may apply before commencing proceedings if:

1. matter is urgent; OR

2. otherwise necessary / desirable to do so in the interests of justice

• mainly urgent interim injunctions see interim injunctions

• procedure

  • court may dispense with need for application notice - if do require undertaking to file AND pay fee same / next working day

  • if granted, court gives directions for commencing claim (unless order for disclosure / inspection)

Multi-track cases

• if possible, consider interim applications at first CMC

• combined CMC and interim application hearing - if applying for order NOT routinely made at CMC AND believe application will be opposed

  • issue and serve application with same return date as CMC, with time estimate

• any application to vary timetable should normally be made within 14 days of service of directions

• application just before trial - deal with at pre-trial review OR apply at start of trial

APPLICATION WITH NOTICE

• general rule: A must file application notice (unless court dispenses with requirement OR permitted by rule / PD)

Procedure

1. file application notice - must

1. state order sought

2. give reasons for order

3. be signed

4. if A wants hearing

2. also file evidence in support (except exhibits)

   • application for interim remedy must include evidence in support

   • NOT required for application for case management directions

   • always include statement of truth, regardless of format (if fail to, court usually allows time to re-file)

   • 4 format options

     1. full information in body of application notice

     2. SoCs already filed

     3. WSs (preferred method)

     4. affidavit / affirmation

     • A pays extra costs occasioned by using affidavit

     • must use for SO, FI, committal application

3. attach draft order

   • no need to file, but must serve

   • if no hearing - must contain statement that R has right to apply to set aside / vary within 7 clear days of service of the order (make to judge who granted)

4. pay fee

5. serve application notice + evidence + draft order ASAP, min 3 clear days before hearing

   • 3 clear days excludes: deemed date of service, date of hearing, weekends, bank holidays, Christmas, Good Friday (as <5 days)

   • if can't comply may justify without notice

6. agree bundles and file 1 clear day before hearing

7. complex applications before HC judge: file skeleton argument (if possible, 2 clear days before hearing) e.g. required for interim injunctions

Disposal without a hearing

• may deal without hearing if:

1. parties agree terms of order sought; OR

2. parties agree to dispose without hearing; OR

3. court does NOT consider hearing appropriate

• if party dissatisfied with order made on the papers - can apply to same judge within 7 days after service of order to have it set aside / varied

Telephone hearing

• use for case management / interim hearing estimated to take <1 hour

• must

1. serve application notice at least 5 clear days before hearing (NOT 3)

2. file and serve any documents relied on by 4pm at least 2 days before hearing

   1. multi-track cases: must include case summary + draft order

Orders made on court's own initiative

• court can:

1. fix hearing to decide whether to make order of own initiative (must notify parties at least 3 days in advance); OR

2. simply make order (including statement that parties can apply to vary)

APPLICATION WITHOUT NOTICE

When can a without notice application be made?

• without notice applications can only be made if good...

Buy the full version of these notes or essay plans and more in our BPTC Civil Ligitation Notes.