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Interim applications - hearing before procedural judges seeking directions or an order relating to civil proceedings
Terms in this set (30)
- without notice
- on notice
APPLICATION ON NOTICE
- May take place with a determined hearing
- A court may, however, determine that an application on notice does not require a hearing and determine the matter on the papers contrary to the express wish of the applicant on the basis that a hearing is not appropriate CPR 23.8 - as an alternative to save costs, LR may make the application via telephone or video conferencing.
APPLICATIONS WITHOUT NOTICE
With or without a hearing
Basic principle: no order should be made without a party having been heard except:
1. giving notice may defeat the purpose of the application or could create an injustice through delay/action e.g. freezing injunctions/search orders
2. The respondent is not yet recorded on the court file, as no claim form has been served or the defendant seeks permission to serve an additional claim (CPR 20 - where permission is needed****)
3. when the defendant can only be described and their name is unknown - people unknown- trespass matters./ intellectual property matters.
Different types of interim applications & purpose
- may enable a matter to proceed to trial quicker
- may preserve evidence - search order for instance
- may exert pressure on an opponent (injunction, freezing injunction)
- or the more significant the interim application e.g. injunction, it may terminate proceedings altogether if the outcome sought is granted or a settlement reached.
applications of a minor procedural nature- more time to do something or to correct/amend
- applications for more significant case management decisions- disclosure, exchange of evidence or directions
- applications for specific remedies- specific disclosure, interim injunctions and interim payments
DIFFERENT TYPES OF INTERIM HEARING
practicalities of telephone hearings summary
- cost effective as reduce counsel/solicitor attending
Telephone hearings can be used, except at the royal court of justice, where all appointments before the master are in person.
Automatically conducted by telephone unless agreed otherwise;
Para 6.2 PD 23A
- allocation hearing
- interim applications, case management conferences, and pre trial reviews with a time estimate of less than one hour.
Exceptions to the rule in Paragraph 6.2 PD 23A
- without notice hearings
- where all parties are unrepresented
- where there are more than 4 separately legally represented people who wish to make representations
implications of failure to attend hearings summary
If applicant or respondent fails to attend, the court may proceed in their absence.
If the missing party give a reasonable explanation for their non-appearance, the court may list the application to be reheard. The missing party may then be liable for the costs of the party that did attend. A legally represented party would need good reasons for the justification of a rehearing.
Setting aside judgment
CPR Part 24
Strike out application pursuant to
Security for costs
CPR 25 - Cynamid guidelines
Case Management Conference
CPR 26, 28, 29 - according to whether it is FT /MT
Pre-trial review or hearing, including listing hearings
CPR 28, 29
Application to vary directions
Application to compel a party to apply with directions
Any application where permission is acquired under any provision of CPR
example: adduce of expert evidence (CPR 35)
Methods of interim application
- to be heard by telephone
- to be listed for hearing
- to be dealt with on papers in absence of the parties
How does the court determine the necessary interim application and how it should be dealt with?
The provisions of CPR 1.1(2) (OVERRIDING objective are relevant)
- is the application proportionate and are the outcomes proportionate to the value of the case
Definition of proportionality - CPR 44.3
- is the outcome of the interim application to pursue the purpose of conducting litigation justly
In order to succeed in an interim application, the applicant will need to argue that:-
- the applicant has done all they can to co-operate with the respondent on the issue, within the constraints of the court timetable
- the order sought will not prejudice the timetabling of the trial and if so, this can be justified ( necessary to conduct the case justly)
- the likely benefits justify the cost of giving the parties the order sought
- the interim application is dealing with as many o/s issues as it can on that occasion.
To succeed, the interim application must be pursuant to a rule of the CPR and that rule must be followed in full
No one rule, but PD 23 and CPR 23 provide general guidance on how to make any interim applications.
The court's general power to make interim orders is contained in CPR 3.1(2).
Likewise the court's general power to grant interim remedies is contained in CPR 25.1
IF A PROVISION OF THE CPR CONTAINS A SPECIFIC RULE Re: interim application that will override
the general rules in CPR 23
an interim application should be made as soon as it is apparent it is necessary or desirable (Para 2.7 PD 23A)
- wherever possible an interim application should be made and heard at any hearing that has already been listed (Para 2.8 PD 23A) - typically a CMC.
- The interim application should generally be made to the court in which the application is proceeding CPR 23.2
Trial fixed> make the application to the trial court
Enforcement being undertaken> make application to the court undertaking enforcement
Pre-action application> make application to the court in which proceedings are likely to be commenced (CCMCC/CCBC)
1. Application notice states the intention of the party applying , should be prepared and filed at court even where the application is being filed wihout notice to the respondent. (CPR 23.1) and CPR 23.3.
Formal form and content - set out in para 2.1 PD 23A
2. Generally on notice unless there is good reason for it not to be on notice (CPR r.23.4(4))
3. If there is any subscribed deadline for making such an interim application, then the day it is received by the court is the date that it is filed with the court fee at the court CPR 23.5
4. All supporting evidence should be filed with the interim application (N244 ) Para 9.6 PD 23A unless supporting documents are already filed on the court file.
Notice requirements on respondents if on notice- serve 3 clear days on the respondent before any listed hearing (CPR r23.7(1)(b))
If to be heard by telephone, then the time for filing application notice is 5 clear days before and supporting evidence 2 clear days before.
- Draft order also filed at court and if long/complex supplied on disk (Para 12.1 PD 23A).
- supporting evidence not always required if application is for case management directions, but reasoning should be given to support reason for application.
- Provision for the court to deal with urgent applications at short notice Para 3 & 4 of PD 23A.
- Interim applications are typically heard by master or DJ but may be referred to a judge ( Para 1 PD 23A)
- A fee is payable unless eligible for a fee redemption on the basis of financial hardship
- service on the respondent by the court:- sufficient copies of all documentation to be provided.
- if the respondent wishes to rely on evidence to respond to the interim application such evidence should be served and filed at court as soon as possible para 9.4 -9.6 PD 23A.
If an application for costs is being made, the costs schedule must be served n the other party 24 hours prior and lodged at the court ( this varies from the FT trial which determines that the cost schedule N260 must be lodged 2 clear days prior).
Time estimate for interim applications to be heard
The applicant needs to give a time estimate, and where on notice this should be agreed by the respondent in advance.
Notice and hearing provisions for interim applications
When can my client make a CPR 23A interim applications without notice under PD 23A?
- exceptional urgency
- overriding objective better furthered by an application being made without notice
- where the parties consent
- where the court grants permission
- where there is a claim and the date of hearing has been set but they do not have sufficient time to serve an application notice
- otherwise where a PD or court order directs
Applications without notice should include the reasons why notice was not given CPR 25.3(3). If the court disagrees with the fact that the staff has have not allowed it, they should be given the opportunity to give notice
CPR 23.9 - service of an order made without notice
Unless the court orders otherwise, any order made on an without notice basis must be served on the respondent inc. service of the application notice, evidence that supported the application and the order that has made.
The notice to the respondent should include a statement stating that the defendant has a right to set aside or vary the order made CPR 23.10 but the application must be made within 7 dats after the date of service.
Applications without a hearing - no attendances from either party "paper applications"
- The intention here being that no parties will attend or no telephone hearing will be commenced. They are typically without notice, unless the parties are requesting a consent order by agreement ( and therefore notice). These applications require submissions by paper and documentation will be the basis of any order made, as oral submissions will not be made by either party.
Usual form of paper applications
Court fee as advised in the Civil Proceedings Fees (Amendment ) Order 2014 EX50
All paper applications entered onto court system and then referred to master/district judge to determine whether appropriate to proceed without a hearing.
If the court disagrees that the application can be dealt with without a hearing, then it will list the matter for a hearing, giving notice to both parties with a time, time estimate and further directions for the filing of any further evidence on which parties wish to rely Para 2.5 PD 23A.
Typical paper applications
- Change of solicitors CPR 42.2
- Service outside jurisdiction (Part 6) - no notice required here
- Payment out of funds in court Para 13.1 PD 21
- where the parties agree to the terms of the order sought CPR 23.8 (A) - parties to grant an extension of time for the filing of the defence
- Where the parties agree that the court should dispose of the matter without a hearing s23.8(b) - for instance where telephone hearing fixed for application but parties have agreed settlement in the interim, parties will both write inviting the court to vacate the hearing and make the order as agreed.
23.8(a) & 23.8(b)
The order following a hearing of an interim application
Under CPR 40.3 the court or the parties can draw up the court order made following an interim application. The default position is that the court will draw up the order. Where a draft order has been provided. but amended or varied following a hearing, the party who did the draft will amend and send it to the court to be sealed, and then send to the other parties. The parties are likely to draw up the order themselves in there is a need to have it done quickly, due to the time constraints of the court.
Drawing up the order CPR 40.4
Where a party has agreed to draw up the order, not the court, the party should file not more than 7 days after the hearing, the court order for approval and sealing. Some courts may shorten this period, to 48 hours and in their default another party may draw up the order.
- Sufficient copies need to be served on the court for sealing and approval, which then are served on other parties and one retained for the court file.
Another situation where the court may not draft the order that results from a hearing or a decision made on paper :-
consent order - CPR 40.6 allows the court to approve a consent order without a hearing provided that the order:
- states that on its face it is by consent
- contains the agreed terms
- is signed by legal representatives on behalf of both parties or by a litigant in person if not represented
If the court approves the order as drafted, the court staff may then simply seal and return the order to other parties.
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