This is an extract of our Interim Applications Remedies document, which we sell as part of our BPTC Civil Ligitation Notes collection written by the top tier of City Law School students.
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[[NB, TIME: when you are calculating periods less than 5 days, you do not count:
weekends, the day on which the period beings, and the day on which the hearing takes place ? rule 2.8]] ? eg, if notice of an application must be served at 3 days before the hearing, if the hearing is to be Friday 20 October, the last date for service is Monday 16
October. If hearing date is a Tuesday, last date for DEEMED service is previous
BUT if the period is over 5 days, you don't include day the period started or the day of the hearing itself; BUT you do count weekends/bank holidays.
Interim Applications, Part 23
CPR 23 (1-12), General rules about applications for court orders
R23.1, Meaning of "application notice" and "respondent"
-In this Part:
-"application notice" means a document in which the applicant states his intention to seek a court order; and
(a) the person against whom the order is sought; and
(b) such other person as the court may direct.
23.2, Where to make an application
-(1) General rule: an application must be made to the court or County Court hearing centre where the claim was started.
-(2) if a claim has been transferred to another court/another County Court hearing centre since it was started ? an application must be made where the claim has been transferred or sent, unless there is good reason to make application to a different court.
-(3) if the parties have been notified of a fixed date for trial ? an application must be made to the court where the trial is to take place.
-(4) subject to (4A), if an application is made before a claim is started ? the application must be made to the court where it is likely the claim to which the application relates will be started, unless there is good reason to make the application to a different court.
o This is subject to (4A): an application made in the County Court before a claim has been started may be made at any County Court hearing centre,
unless any enactment/rule/PD provides otherwise.
-PD23A, para 5: all applications made before a claim is commenced ? should be made under Part 23 CPR. ?
(5) if an application is made after proceedings to enforce judgment have begun: it must be made to the court/County Court hearing centre which is dealing with the enforcement of the judgment unless any enactment/Rule/PD provides otherwise.
WHEN to make an application:
-PD23A para 2: Every application should be made: as soon as it becomes apparent that it is necessary or desirable to make it.
PD23, para 5, Pre-Action applications
-PD23A, para 5: all applications made before a claim is commenced ? should be made under Part 23 CPR.
23.3, Application notice to be filed
-(1) General rule: an applicant must file an application notice
(should also file any supporting evidence with the court, see PD23A)
-(2) an applicant may make an application without filing an application notice IF:
o (a) this is permitted by a rule or PD; OR
o (b) the court dispenses with the requirement for an application notice.
23.4, Notice of an application (service of application notice)
-(1) the general rule is that a copy of the application notice must be served on each respondent.
-(2) an application may be made without serving a copy of the application notice IF
permitted by ? [[see PD 23a para 3 below, for where application made be made without serving notice]]:
o (a) a rule;
o (b) a PD; or
(c) a court order.
-(r23.7 deals with service of a copy of the application notice)
-PD 23A, para 4.2: where an application notice should be served but there is not sufficient time to do so ? informal notification of the application should be given
(unless the circumstances of the application require secrecy)
23.5, Time when an application is made
-Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time.
-[[i.e. the application is 'made', for the purpose of any time limit, when the notice is received by the court]]
23.6, What an application notice must include
-An application notice must state:
o (a) what order the applicant is seeking; and
(b) briefly, why the applicant is seeking the order.
-Part 22: an application notice must be verified by a statement of truth IF applicant wishes to rely on matters set out in his application notice as evidence.
-PD 23A, para 2.1, An application notice must also: ???
(1) be signed
o (a) the title of the claim,
o (b) the reference number of the claim;
o (c) the full name of the applicant;
o (d) where the applicant is not already a party, his address for service including postcode
(e) EITHER a request for a hearing, OR a request that the application be dealt with without a hearing.
(Practice Form N244 may be used).
NB, supporting written evidence should also be filed with the court (see PD23A,
NB, see below, when the application notice is served, it should be accompanied by:
o (a) any supporting evidence;
o (b a copy of any draft order the applicant has attached to his application.
PD 23A, paras 2, application notices
-Every application should be made: as soon as it becomes apparent that it is necessary or desirable to make it.
-Wherever possible, applications should be made so that they can be considered at any other hearing for which a date has already been fixed or for which a date is about to be fixed.
o Particularly in relation to : case management conferences, allocation and listing hearings, and pre-trial reviews fixed by the court.
-The parties must anticipate that at any hearing the court may wish to review the conduct of the case as a whole and give any necessary case management directions.
They should be ready to assist the court in doing so and answer questions court may ask for this purpose.
-2.10: Where a date for a hearing has been fixed, and a party wishes to make an application at that hearing but does not have sufficient time to serve an application notice
? he should inform the other party and the court (if possible in writing) as soon as poss of the nature of the application, and reason for it.
o ? he should then make the application orally at the hearing
PD 23A, para 2: How court should respond to application notice (my own heading)
-On receipt of an application notice containing a request for a hearing ? court will notify the applicant of the time & date for the hearing.
-On receipt of an application notice containing a request that the application be dealt with without a hearing ? the application notice will be sent to the Master or
District Judge so that he may decide whether the application is suitable for consideration without a hearing.
o Where the Master/District Judge agrees that is suitable for consideration without a hearing ? court will so inform the application and respondent and may give directions for filing of evidence
-(see below, r23.9-10, a party can apply for an order made without a hearing to be set aside/varied). ?
o Where the Master/District Judge does not agree that the application is suitable for consideration without a hearing ? the court will notify the applicant and respondent of the time, date and place for the hearing; and may, at same time, give directions as to the filing of evidence.
If the application is intended to be made to a judge (CF a Master or District Judge)
the application notice should so state, and references above to 'Master/District
Judge' are read as references to a 'judge'.
23.7, Service of a copy of an application notice (with supporting evidence & draft order)
-NB general rule in 23.4: a copy of the application notice must be served on each respondent.
-(1) a copy of the application notice (with supporting evidence and draft order):
o (a) must be served as soon as practicable after it is filed; AND
o (b) if there is to be a hearing: must in any event be SERVED at least 3 DAYS
before the court is to deal with the application (except where another time limit is specified in these rules/PD,.
-PD 23A, para 4.1A: where there is to be a TELEPHONE hearing ? the application notice must be served as soon as practicable after has been issued; and in any event at least 5 days before the date of the hearing.
-PD 23A, para 4.2: where an application notice should be served but there is not sufficient time to do so ? informal notification of the application should be given to the respondent (unless the circumstances of the application require secrecy)
-(2) if a copy of the application notice is to be served by the court ? the applicant must, when he files the application notice, file a copy of any written evidence in support.
-(4) [[court discretion to hear the application if notice is served late]]
o (a) an application notice is served; BUT
o (b) the period of notice is shorter than the period required by these Rules or a PD [[i.e. not at least 3 days before court is to deal with the application, or some other prescribed time limit]]
o ? the court may direct that, in the circumstances, sufficient notice has been given, and court may hear the application.
-(3) when a copy of an application notice is served, it must be accompanied by:
o (a) a copy of any written evidence in support; AND
o (b) a copy of any draft order which the applicant has attached to his application.
o [I.E. SO YOU serve 3 things: (1) application notice; (2) supporting written evidence; (3) a draft order]]
-(5) this rule does not require written evidence:
o (a) to be filed if it has already been filed; OR
o (b) to be served on a party on whom it has already been served.
-(Part 6 contains general rules about service of docs, including who must serve a copy of the application notice).
PD 23A, para 9, Evidence (to be filed and served with the application notice) ?????Requirement for evidence in certain types of applications is set out in some rules/PDs.
Written evidence relied on may be set out in (1) applicant's Statement of case; (2)
the application notice; or (3) in a witness statement.
Where there is no specific requirement to provide evidence under the relevant rules/PDs, it should be born in mind that, as a practical matter, the court will often need to be satisfied by evidence of the facts that are relied on in support of, or for opposing, the application. [[i.e. generally you should have evidence]]
Court may give directions (which may specify the form the evidence is to take and when it is to be served) for:
o filing of evidence in support of/opposing an application;
o for the filing of evidence in relation to any hearing that it fixes of its own initiative.
Where it is intended to rely on evidence not contained in the application itself ? the evidence should be served with the application (if the evidence has not already been served).
Where a respondent wishes to rely on evidence not yet served: he should serve it as soon as possible, and in any event in accordance with any directions court may have given.
If necessary for the applicant to serve any evidence in reply ? should be served as soon as poss, and in any event in accordance with any court directions.
Evidence must be filed with the court as well as served on the parties
Exhibits should not be filed unless court otherwise directs.
The contents of an application notice may be used as evidence (otherwise than at trial) IF verified by a statement of truth.
PD32A, para 12.1, Misc: Draft of the order sought
-Except in the most simple applications, the applicant should bring to any hearing a draft of the order sought.
-The draft order should also be supplied on disk for use by court office IF:
o (a) the case is proceeding in the Royal Courts of Justice; AND
o (b) the order is unusually long or complex.
23.8, Applications which may be dealt with without a hearing
-The court may deal with an application without a hearing if:
o (a) the parties agree as to the terms of the order sought; OR
o (b) the parties agree that the court should dispose of the application without a hearing; OR
o (c) the court does not consider that a hearing would be appropriate.
PD 23A, para 3: Applications without service of application notice
-Remember, general rule is that a copy of the application notice must be served on each respondent.
-An application may be made without serving an application notice ONLY:
1. Where there is exceptional urgency
2. Where the overriding objective is best furthered by doing so;
3. By consent of all parties;
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