Interim Remedies And Interim Applications Including Sjdj Judgment Notes

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...

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