#10332 - Interim Applications - BPC Civil Litigation

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 reason:

1. exceptional urgency - no practical possibility of giving 3 clear days' notice - give informal notice (unless secrecy required)

2. OO best furthered by doing so

1. application depends on secrecy

2. other party not on court record - renewal of claim form / application for permission to issue additional claim

3. by consent of all parties

4. permitted by rule, PD, court order

5. application where hearing fixed AND no time to serve application notice - inform parties ASAP in writing - apply orally at hearing

Duty of full and frank disclosure

• A must disclose material facts within actual knowledge AND which could've discovered on making reasonable enquiry

• a continuing duty (usually until first hearing - till final disposal for A's financial circumstances)

• if A found G of material non-disclosure - NO order (regardless of merits)

  • court may re-grant (used sparingly) - consider: culpability, importance of undisclosed matters, merits

Procedure

1. file application notice (as for on notice, though court may dispense with this if urgent)

2. also file evidence in support - say why notice NOT given

3. hearing

   • application can be decided with or without a hearing

   • any hearing will be in chambers

   • if A dissatisfied with order made on papers, can request hearing with same judge

4. order made

   • 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 order)

5. serve order + application notice + evidence in support

INTERIM HEARINGS

• general rule - held in public (usually in chambers)

• court can also give case management directions

Written evidence

• judge must accept veracity of written evidence (avoid mini-trial)

• if conflict in parties' written evidence - 4 options:

1. leave resolution of conflict till trial

2. order XX of disputed Ws at interim hearing

3. go behind WS - if improbable / contradictory

4. determine disputed issue - standard = good arguable case (unless specific procedure)

Non-attendance

• court may proceed in absence of any party

• if party absent has general discretion to relist application

SUMMARY DETERMINATION OF INTERIM COSTS

• make summary assessment straight after hearing if hearing lasts <1 day (usual)

• costs usually payable within 14...