Chapter 10: Interim application

• Interim application


  Any application made to the court that requires a judicial decision
• Interim applications


  • They are procedural in nature, the party making the application must fully comply with the rules relating to the particular type of application
  • Common examples include an application to set aside default judgment and an application for an unless order
• Overriding objective


  The aims the court will consider when deciding on an interim application - the application must be just, fair, proportionate, efficient, and in compliance with court rules, procedures, and practice directions
• An application that fails to comply with the overriding objective runs the risk of an adverse costs order
• Procedure for making an interim application

  1. The application should be made as soon as it is apparent that it is necessary or desirable

  2. If possible, the application should be made and heard at any hearing already listed

  3. The application should be on at least three days' notice to the other party (five days if by telephone) unless there is good reason why notice should not be required

  4. All evidence relied on in support of the application should be in writing and filed at court along with the notice and required filing fee within the above time limits

  5. The applicant should file and serve a case summary and proposed draft order no later than two days before the hearing
• Clear days


  Time is measured in clear days, meaning the day on which the period begins and the day on which the event occurs are not included
• Who hears an interim application

  • Most applications come before a Master (if in the High Court RCJ) or a District Judge (in all other cases)
  • The court will expect the parties to agree a time estimate for the application
  • The courts hear most applications by telephone to reduce the parties' costs
• Notices must be made on application unless an exception applies, such as for freezing injunctions and search orders where notice may defeat the purpose
• Procedure for without-notice applications

  1. The application must include evidence explaining why notice was not given

  2. If an order is made, it must be served on the defendant who then has seven days to make an application to vary or set aside the order

  3. If a party makes an application without notice erroneously, the court is likely to dismiss it with a wasted costs order
• Setting aside default judgment

  A defendant can apply to the court to set aside a default judgment obtained against them
• Summary judgment


  An application asking the court to enter judgment for the applicant without proceeding to trial, where the applicant must show the other party has no real prospect of success and there is no other compelling reason why the case should proceed
• Grounds for striking out a statement of case

  • The statement of case discloses no reasonable grounds for bringing or defending the claim
  • The statement of case is an abuse of the court's processes
  • There has been a failure to comply with a rule, practice direction, or order
• Grounds for summary judgment

  • The claimant has no real prospect of succeeding in the claim
  • The defendant has no real prospect of successfully defending the claim
  • There is no other compelling reason why the case should be disposed of at trial
• Timing and submission of evidence for summary judgment applications

  1. A defendant cannot make an application for summary judgment until the claimant has served the Particulars of Claim and the defendant has served the acknowledgement or defence

  2. The applicant must serve written evidence to support the application at least 14 days before the hearing

  3. The defendant must serve evidence in response at least seven days before the hearing

  4. The claimant must serve any evidence in reply no later than three days before the hearing
• Outcome of summary judgment application

  • If the claimant is successful, the court will order summary judgment on the claim
  • If the defendant is successful, the claim will be struck out
  • If the application fails, the judge will probably give directions for the future conduct of the claim
• Interim payment


  An application for the court to order some payment before the final determination on the claim, which is always discretionary and cannot cause an injustice
• Grounds for an interim payment order

  • The defendant has admitted liability
  • The claimant has obtained judgment, but the sum to be paid is not yet assessed
  • The court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum
  • If the claim is against two or more defendants, the court is satisfied that if the action went to trial, the claimant would obtain judgment for a substantial sum against at least one and each defendant carries insurance
• Procedure for interim payment applications

  1. The applicant should always invite the respondent to make an interim payment before making an application

  2. The applicant must support the application by evidence, filed and served with the application, at least 14 days before the hearing

  3. The respondent must file its written evidence at least seven days before the hearing, and the applicant can file a reply up to three days before the hearing

  4. The written evidence must contain details of the sum sought, the items and matters it relates to, an estimate of the final judgment, and in personal injury claims, a schedule of loss
• It is not necessary for the court to be satisfied that there is a specific need for the interim payment, but if there is an urgent requirement for funds this should be included in the evidence
• Reasonable proportion


  The court cannot award an interim payment that is more than a reasonable proportion of the likely amount of the final judgment, to avoid causing an injustice
• The court must take account of any likely contributory negligence, set-off, or counterclaim when considering whether to award an interim payment and when determining the amount
• Interim payment


  A payment made before the final judgment in a case
• Interim payment


  • Must be a reasonable proportion of the likely amount of the final judgment
  • Court cannot award more than a reasonable proportion to avoid injustice
  • Courts have awarded 75% or more of the claimant's anticipated damages in appropriate cases
• Contributory negligence


  When the claimant's own actions contributed to the harm they suffered
• Injunction


  A court order that requires a party to do or stop doing something
• Injunctions


  • Interim if made before trial, final if made at trial
  • If the 'enjoined' party breaches the order, the court may hold the party in contempt of court
  • Court has discretion to grant an injunction, but will not if damages would be an adequate remedy
• Obtaining an interim injunction


  1. Party applies to the court, often without notice to the other party

  2. Injunction remains in force until the 'return date' hearing

  3. At the return date hearing, the defendant can explain why the injunction should not have been granted, and the court decides whether to continue or dismiss the injunction order
• Injunction before proceedings commence

  • Applicant must undertake to issue proceedings straight away
• Types of injunction


  • Prohibitory (prevents someone from taking action)
  • Mandatory (requires someone to take action)
• It is possible to obtain an interim injunction in 48 to 72 hours
• Undertaking in damages


  An undertaking that the claimant will compensate the defendant for any loss suffered because of the injunction if the court later determines the injunction should not have been granted
• Grounds for discharging an injunction

  • Material non-disclosure
  • Failure of the applicant to comply with terms
  • Facts do not justify interim injunction relief
  • Injunction is oppressive
  • Material change in circumstances or law
  • Claimant has failed to prosecute the claim with due speed
• Freezing injunction


  A type of prohibitory injunction designed to freeze the assets of the defendant to prevent them from disposing of or removing the assets from the jurisdiction before the claim proceeds to trial
• Grounds to grant a freezing injunction

  • Justifiable cause of action
  • Claimant has a good, arguable case
  • Defendant has assets within the jurisdiction
  • Real risk defendant may dispose of or dissipate those assets before judgment can be enforced
• Components of a freezing injunction

  • Undertakings by the claimant
  • Order freezing the defendant's assets (not exceeding the maximum amount of the claim)
  • Period of time the order is to last
• A freezing injunction binds third parties who have knowledge of it
• Grounds to discharge a freezing injunction


  Defendant offers other security for the claim or shows claimant is guilty of material non-disclosure
• Search order


  A mandatory injunction requiring the defendant to allow the claimant to search for and potentially seize evidence that the defendant may destroy
• Grounds to grant a search order

  • Strong prima facie case on the merits
  • Defendant's activities would cause very serious potential or actual harm to the claimant's interests
  • Clear evidence the property or documents are in the defendant's possession and there is a real possibility they may be destroyed
• Requirements for a search order

  • Defendant must disclose whereabouts of documents or property
  • Independent supervising solicitor oversees execution of the order
  • Claimant's solicitor undertakes to return documents, deliver disputed property, and securely retain other property