#19725 - 7. Bpc Civil Litigation 2023 2024 Interim Applications And Injunctions - BPC Civil Litigation

• The application must be made to the court where the claim was started/where trial is to take place. If it has been transferred, it must be made to the court to which it has been transferred, unless there is good reason to make the application to a different court.

• 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.

• The court may deal with an application without a hearing if:

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

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

  • The court does not consider that a hearing would be appropriate.

• Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence. The court may, on application or of its own initiative, re-list the application.

• Permission of the court is not required to make the application.

Notice:

• The general rule is that an application notice must be filed as soon as it becomes apparent that it is necessary or desirable to make it.

• This must be served on each respondent as soon as practicable after it is filed and must, in any event, be served at least three days before the court is to deal with the application (5 days if it is a telephone hearing).

• It must be accompanied by a copy of any written evidence in support and a copy of any draft order.

• This must state what order the applicant is seeking and briefly, why the applicant is seeking that order.

• If the application is intended to be relied on as evidence it must be verified by a statement of truth.

• If the application is served but the period of notice is shorter than that required, the court may direct that, in the circumstances of the case, sufficient notice has been given, and hear the application. Some kind of informal notice should normally be given.

Application made without notice:

• An application may be served without serving an application notice only:

  • Where there is exceptional urgency;

  • Where the overriding objective is best furthered by doing so;

  • By consent of all parties;

  • With permission of the court; or

  • Where a court order, rule or practice direction permits.

• Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person–

  • Against whom the order was made; and

  • Against whom the order was sought.

• The order must contain a statement of the right to make an application to set aside or vary the order.

• A person who was not served with an application notice before an order was made may apply to have the order set aside or varied, this must be made within 7 days after the date on which the order was served on the person making the application.

• In an application for an interim remedy where there is no urgency in the next 24 hours the minimum standard of evidence which the court will be likely to consider at the hearing is a witness statement.

Dismissal of totally without merit applications:

• If the court dismisses an application (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the application is totally without merit –

  • The court’s order must record that fact; and

  • The court must at the same time consider whether it is appropriate to make a civil restraint order.

Order for interim remedies:

• The court may grant:

  • An interim injunction;

  • An interim declaration;

  • An order:

    • For the detention, custody or preservation of relevant property;

    • For the inspection of relevant property;

    • For the taking of a sample of relevant property;

    • For the carrying out of an experiment on or with relevant property;

    • For the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly

    • For the payment of income from relevant property until a claim is decided.

  • Delivery up;

  • Freezing injunction;

  • Search order;

  • Order for disclosure;

  • Damages; and

  • Recovery of property.

• Injunctive relief may be granted in cases where there is no claim for substantive relief.

Timing:

• An order for an interim remedy may be made at any time, including before proceedings are started and after judgment has been given.

  • An interim remedy before a claim will only be granted if the matter is urgent or it is otherwise desirable to do so in the interests of justice. The court will then make a direction for a claim to be issued. They must undertake to issue the claim form immediately and serve it with the order for the injunction.

American Cyanamid:

• The American Cyanamid interim injunction test:

  • Is there a serious question to be tried? If yes, then two further related questions arise, they are:

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

  • If not, where does the “balance of convenience” lie?

Is there a serious question to be tried?:

• The claim must have a recognised cause of action.

• It must not be frivolous or...