Suggested answers to self-test questions

Question 1: What is the general purpose of interim applications?

The court controls the path and, significantly, the timing of an action to trial. In general, though parties can seek to influence the case management decisions, the court has ultimate control. Because of this litigants will usually need to make an interim application for any step they wish to take in the action or for permission to do something concerning the action. These may be significant steps but also less significant steps. Nearly all will require a ‘judicial decision’.

Interim applications are often made in the following circumstances:

• Applications of a minor procedural nature. For example for more time to do something.
• Applications for more significant case management decisions. For example applications relating to disclosure, exchange of evidence, or directions.
• Applications for specific remedies. For example for specific disclosure, interim injunctions, and interim payments.
• Applications for relief from sanctions. Since the April 2013 reforms were implemented into the CPR, these types of applications have been much more common place as parties who had traditionally been able to flout court ordered deadlines without penalty now found them selves faced with stringent costs and strike out consequences of their actions.

Interim applications can be used for a variety of purposes. They may enable an action to progress to trial more quickly. They may preserve evidence. They may be used to exert pressure on an opponent.

The more significant interim applications may by their very nature have a direct impact on the outcome of the action and may in themselves result in a determination of the action or a settlement being reached. Apart from the numerous encouragements and incentives contained in the protocols and in the CPR that encourage litigants to resolve their disputes without recourse to the courts, many of the more significant interim applications can be seen as part of the armoury – often of the stronger party – to force their opponent to the negotiating table and to settle on terms that are favourable to that stronger party. In this way interim applications can be used tactically to gain the upper hand. Because the courts will always consider the aims contained in the overriding objectives whenever it is asked to consider a party’s interim application it is also important for any party making such an application to be prepared to give his reasons and justify the application to the court within the terms of the overriding objective – that making the application is ‘just’, ‘fair’, and ‘proportionate’ (as to value and costs).

Because of the significance of the outcome of some interim applications the process of them and the evidence supplied to support them needs to be considered every bit as carefully as the trial itself.

Question 2: The evidence submitted in support of an interim application is usually written evidence. What is the effect of this?

Written evidence is hearsay evidence. It carries less weight than oral evidence. Furthermore, the written evidence for interim applications will often contain untested (at trial, by cross-examination) assertions.

Oral evidence by witnesses is rarely permitted in interim applications. Care must always be taken to be aware of the distinction between an ‘assertion’ and ‘evidence supported by fact.’ It is important to consider the inclusion of material evidence in an interim application so as to add ‘weight’ to the persuasive assertions the legal representative may make at the hearing of the application.

Question 3:In terms of any interim application what two most important matters must the person applying ensure he can do or has done?

Essentially these two matters are ensuring the application is provided for in the CPR (and adhered to precisely in the application), and, making sure the application accords with the overriding objectives.

All interim applications are ‘procedural’ in nature. An interim application can only be made if it is provided for in the CPR. Therefore, for any interim application to succeed the rule providing for it must be complied with in full and to the letter else the application will fail.

Question 4: When would an interim application be made without notice?

The basic principle of litigation is that an order should not be made against a party without him having an opportunity to be heard. However, there will be occasions when it is necessary to do so. For example:

• When giving notice may defeat the purpose of the application or when it could create an injustice through delay or action that the respondent may take to defeat the application – examples include search orders and freezing injunctions.
• When the opponent is not yet on the court record – an example of this would be when the claimant seeks more time to serve the claim form or when a defendant seeks permission of the court to issue an Additional Claim (CPR 20) (on the occasions where permission is needed).
• When the defendant can only be identified by description and not by name – this may occur in intellectual property claims.

PD 23A.3 sets out a list of occasions when an interim application may be made without notice. These include:

• Where there is exceptional urgency.
• The overriding objective is best furthered by the application being made without notice.
• Where the parties consent.
• Where the court grants permission.
• 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.
• Where a rule PD or court order permits.

The evidence in support of an application without notice must include the reasons why notice was not given.

An applicant and his legal representative each have special obligations when making a without notice application to the court. This reflects the fact that they are asking the court to make an order without hearing any evidence or opposing arguments from the respondent. These obligations include a ‘high duty to make a full, fair, and accurate disclosure of material information to the court and to draw the court’s attention to significant factual, legal, and procedural aspects of the case’. The applicant must carry out proper enquiries to ensure this duty is met. The applicant is also often required to give an undertaking as to damages to protect the respondent from any losses he may incur as a result of the order being made against him unjustly. The most common without notice applications are freezing injunctions, search orders, and intellectual property claims. The procedure for these can be found in CPR 25 and in the Online Chapter – Injunctions and Other Equitable Remedies.

If an application is made without notice, where the court concludes that it was not appropriate to have done so, the application will be dismissed or adjourned until proper notice is given.

CPR 23.9 states that when an order has been made on a without notice application, unless the court orders otherwise, it must be served on the respondent. This service will include: the application notice, the evidence that supported the application, the order that has been made.

The notice to the respondent will include a statement setting out the respondents’ right to make an application to set aside or vary the order that has been made (CPR 23.10) but such application by the respondent must be made within seven days after the date of service.

Question 5: What is the purpose of an ‘unless’ order and when might one be made in connection with interim applications?

An ‘unless’ order usually signifies the disapproval of the court.

If the court concludes that the opponent in an interim application has failed adequately to comply with the obligations of a previous order or within the general ethos of litigation practice (he may have failed to respond to an early request to comply), or where the court doubts the bona fides of the opponent, it will often, when making its order on the interim application, add to that order an ‘unless’ provision. The ‘unless’ provision in an order will specify a sanction to be imposed if the order is not complied with. Any order that imposes a sanction for non-compliance must specify the date and time when the steps of the order must be complied with (CPR 2.9). PD 40B paragraph 8.2 lays down formulae for drafting unless orders. Compliance with the time limits set in court orders is regarded as fundamental to litigation practice under the CPR and the courts will not shirk from making unless orders within the terms of a first order so as to ensure the strict timetable for the action can be met. However, the court will generally only make such an order if there has been, or there is evidence that there will be, a deliberate failure to comply with earlier orders of the court or where any default would make a fair trial of the action impossible.

If an ‘unless’ order is made the legal representative must inform the client of the order and the reasons why it was given.