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Interim Remedies And Interim Applications Including Sjdj Judgment Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

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Applications & Judgment The Application Notice

* What is it?

* Use form N244.

* The Application is a document where Applicant states his intention to make an application to seek an Order (r23.1)

* WHEN to make application?

* An application should be made as soon as necessary or desirable to make it (PD23A(2.7)).

*

Application should not be made before claim unless (r25.2(2) CPR):

*

Urgent;

* Necessary in the interests of justice.

* WHAT goes in the Application Notice?

* The Application Notice must state:

* What Order Applicant is seeking;

* Briefly Why the Applicant is seeking that order (r23.6)

* Statement of Truth Pt 22 as a Statement of Case!

* Signed PD23A(2.1);

* Statement of whether hearing is required PD23A(2.1);

* Whether it should be heard by a judge (PD23A(2.6));

* SERVICE of the Application Notice

* The general rule requires Applicant to file an Application Notice (r23.3) unless:

* Court dispenses with the need for application notice under r6.28.

* PD/Rule dispenses with the need for an application notice.

* E.G.: PD54A - Application for JR can be done informally by letter!

* AN sent to Master/DJ to decide whether hearing is necessary (PD23A(2.3))

* The court will send out 'Notice of Hearing'. This must be served with AN on eac R (r23.4):

* As soon as practicable after filing (PD23A(4.1) states after issued!); and

* In any event at least 3 days before the hearing, except where Court specifies another time (r23.7) or dispenses with the requirement (or by PD/rule) per r23.4(2).

* NB: If the court specifies a period shorter than 3 days notice, the Court may nevertheless hold sufficient notice given depending on facts of the case and hear the case per r23.7(4).

* A telephone hearing requires 5 days notice (PD23A(4.1A)). Serve with the application any written evidence in support, and any draft order (r23.7).Unless the evidence is already filed, and served!

* The Application is made when it is received by the court, not when issued per r23.5!

* Documents to be filed must be done so no later than 4pm at least 2 days before the hearing (PD23A(6.11)). Without Notice Applications

* The Court will not hear the application unless other parties have notice (r23.4). But, if court specified period shorter than 3 days, then court can nevertheless hold sufficient notice has been given per r23.7(4).

* PD23A(3) - An application may only be made without notice:

* Where there is exceptional urgency;

* Where the Overriding Objective is furthered by doing so;

* By Consent of all parties;

* With the Permission of the Court;

* Where PD23A(2.10) applies (i.e: doesn't have time to serve, informs all parties informally, preferably in writing. Application is made orally giving the nature of the application and reason for the application)

* Where Order/Rule/PD states otherwise.

* Court may grant an order without notice if there good reasons not to notify D (r25.3(1) CPR)?

* National Commercial Bank Jamaica v Olint Corp Ltd [2009] 1 W.L.R. 1405, PC:

* Notice would enable D to take steps to defeat the purpose of the application (para18, CWS); and

* There has been no time to give 3 clear days formal notice (r23.7(1)(b) CPR, PD25A(2.2)) before the hearing and informal notice has not been given because the circumstances of the application require secrecy, as previously mentioned (PD23A(4.2) CPR). Without Notice Applications: Duties on Applicant

* Should not entertain without notice application unless:

* Notice would enable D to frustrate the purpose of the injunction; or

* Literally no time to give notice before injunction required.

* Duty to investigate the full facts

* Duty of full and frank disclosure to Court, and present facts fully and fairly;

* Duty of full and frank disclosure of AN, Evidence, and any Order made to those affected by the Order ASAP, unless court orders otherwise (even if adverse to Applicant)

* Duty to prepare full skeleton argument in advance of hearing. May even have to refer to Without Prejudice Negotiations if, without them, Court would be misled!

* Duty to take notes of hearing and send to any person affected. Failure to do so may result in indemnity costs in favour of the party affected.

* Any breach of the above may result in the interim remedy being discharged. But the Court must take into account the severity of the breach, the excuse/reason for the breach, the duration of the breach, the prejudice to D etc before discharging any order. So discharge is not automatic on breach!

Is a Hearing needed?

* r23.8 - The parties do not need to have a hearing if:

* The parties agree as to the terms of the order sought;

* The parties agree the court should dispose of the application without a hearing; or

* The court does not consider the hearing would be appropriate. This furthers the OO in ensuring the parties don't need to attend court (r1.4(2)(j))

* Permission for Judicial review is generally dealt with without hearing per PD54A(8.4).

Private Hearings?

*

r39.2 states general rule is hearings must be public, but can be private under (3) if:

*

Publicity would defeat the object of the hearing;

*

Hearing of Application without notice, and unjust to any respondent for there to be a public hearing;

*

Hearing involves confidential information (eg: personal financial matters) and publicity would damage that confidentiality.

* Each derogation from Art 6 ECHR must be justified on the facts of each case.

Proceeding in Absence of a Party

* Where A or R fails to attend, the court may proceed in his absence (r23.11(1)).

* If the Court makes any order in the absence of any party, the Court may relist (i.e. rehear) the application, or on its own initiative. (r23.11(2))

Telephone Hearings

* PD23A(6.2) can have hearings by telephone unless:

* Hearing is application without notice;

* All parties are unrepresented;

* More than 4 parties wish to make representations at the hearing!

* An application that a hearing is not to be heard by telephone must be made with 7 days advance of hearing (PD23A(6.4)) and may be made by letter. Attendance of parties not required.

* No party can attend in person unless the others have agreed so (PD23A(6.9)).

What are interim remedies?

* There are two types of interim remedy:

* Temporary versions of the final remedy sought;

* Interlocutory remedy bearing no relation to final remedy (eg: orders for disclosure)

* The Court can grant an interim remedy even if the final order is not applied for (r25.1(4)). Interim remedies are not limited by the CF!!!!

* CC can exercise HC's powers for interim remedies - s36 CCA 1984.

What interim remedies are available (r25.1)?
(1) Interim injunction; (prohibiting something, or requiring someone to do something)

* HC can grant one where it is "just and convenient" to do so s37 SCA 1981.

* CC may exercise the HC's powers under s38 CCA 1984.

* Courts are more reluctant to order mandatory injunctions (positive action) rather than prohibitory injunctions (negative action).

* Except in cases where secrecy is essential, the applicant should take steps to notify R informally of the application (PD25(4.3(3))).

* If injunction made without notice, then the injunction must contain a return date for a further hearing in which the other party can be present, and if in the presence of all parties, then it can be binding until future order or trial (PD25A(5.1). At the inter partes hearing, D may offer security or otherwise to avoid continuation of the injunction.

* Anti-suit injunctions should be made promptly and before the foreign proceedings are too far advanced.

*

r25.10 - If court grants an interim injunction other than a freezing injunction and the claim is stayed other than by agreement between parties, the interim injunction shall be set aside unless court orders it continues.

*

r25.11 - Interim injunction will be set aside after 14 days of strike out if claim is struck out for non-payment of legal fees under r3.7. If applies to reinstate before interim injunction ceases to have effect (ie within 14 days), injunction shall continue until hearing of the application, unless court orders otherwise.

(2) Interim declaration;

*

EG: Declaration that a certain act would not be breach of an order.

(3) Detaining, inspecting, sampling, experimenting, sale of perishable goods or any other good reason to sell quickly, or payment of income from relevant property.

(4) Authorising entry to land to carry out the order at (c) - EG: To assist in sale of the property. (5) Deliver up goods under T(IWG)A 1977

*

As electronic content may not be considered "goods", it may be best to apply for inspection for that...!

(6) Disclosure/inspection pre-claim of a prospective party (s33 SCA 1981/s52 CCA 1984);

*

EXAMPLE: So expert can inspect the machinery alleged to be in breach/caused C's injuries. ("Engineering Expert" assessment)

*

This rule is limited to physical things of "Relevant property" (subject to the claim, or may be subject to the claim).

*

Usually, these are sought by letter to C at allocation stage. Otherwise, orders are made at case management conference, of even at any time after issuance.

*

Inspection entitles the court to make an order allowing C to make a video of the defendant's manufacturing process (Ash v Buxted Poultry).

*

Applications should be made under Pt 23 (r25.4) and should be supported by evidence (r31.16(2)).

*

r25.5(2) CPR: Evidence in support of application must show the property :

*

*

is, or may become, the subject matter of the proceedings or

*

is relevant to the issues in the proceedings.

r25.5(3) Application notice must be served on the person against whom the order is sought.

(7) Order for disclosure/inspection against non-party AFTER claim issued (s34 SCA/s53 CCA)

*

*

r25.5(2) CPR: Evidence in support of application must show the property :

*

is, or may become, the subject matter of the proceedings or

*

is relevant to the issues in the proceedings.

r25.5(3) Application notice must be served on the person against whom the order is sought and every party to the proceedings other than C.

(8) Interim Payments;

(i) Specific Rules on Making Interim Payments

*

PD25B(1.2) - Can't make voluntary interim payment to/by PP/child without Permission of Court. So must go through Pt 8.

*

The fact an interim payment has been made should not be disclosed to the trial judge!

*

Where the conditions in r25.7 are satisfied, the court should grant an order unless there is a sufficient specific reason not to do so (FII Group v HMRC).

*

There is no requirement to show any particular need per Stringman v McArdle.

*

Judge can't act on evidence which only one side has seen.

*

r25.7(4) - Court must not make interim payment for more than a reasonable proportion of the likely amount of the final judgment.

*

This requires the judge to make an estimate of the final amount of judgment, and what would be a reasonable proportion of that amount? (two stages)

*

No judicial guidance on "reasonable proportion" and nor should there be absolute judicial discretion (Dolman v Rowe [2005] EWCA Civ 715).

*

The amount payable should not expose D to risk of overpaying C, although D can be reimbursed under the rules if so! So C's ability to repay is a factor the court may have regard to when determining whether to make an order. OR whether to impose terms on the money to protect D.

*

If money will be paid to C through court of protection which will only dissipate based on C's needs, risk of loss is lower, so court may be more generous.

*

C's impecuniosity shouldn't prevent them being entitled to an order, but is a relevant consideration in whether to grant the payment or make it subject to conditions.

*

IF conditions are satisfied should generally make the Order unless exceptional reasons to the contrary... A special reason is if it would some how prejudice the position of D in the proceedings, or pre-judge an issue to be determined at trial, or make the trial unfair ("level playing field" principle)

*

The court must take into account contributory negligence, set-off, and counterclaims. (r25.7(5)).

*

The best approach is to find the likely amount of final judgment, then apply a discount for the counter-claim/set offs etc. The reasonable proportion may well be a high proportion if the final judgment is assessed conservatively.

(ii) When to Apply?

*

r25.6 - C may not apply for interim payment until end of period for filing an AoS.

*

C may make more than one application for interim payment.

(iii) How to apply?

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