Chapter 32 Applications and Interim Orders
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Chapter 32 Applications and Interim Orders 32.1 Introduction .. 322 32.21 Hearings by telephone.. 332 32.2 To which court should an application 32.22 Telephone hearings pilot scheme.. 332 be made?.. 323 32.23 Orders made on the court’s own 32.3 Which judge should deal with an initiative .. 332 application? .. 324 32.24 Hearings convened on the court’s own 32.4 Stage when interim remedies should initiative.. 333 be sought or considered .. 324 32.25 Court hearing.. 333 32.5 Pre-action interim remedies.. 324 32.26 Summary determination of interim 32.6 Obligation to apply early .. 325 costs .. 333 32.7 Applications without notice.. 325 32.27 Non-attendance.. 334 32.8 Procedure on applications without 32.28 General powers regarding interim notice .. 326 relief and orders.. 334 32.9 Duty of full and frank disclosure.. 326 32.29 Consent orders.. 335 32.10 Applications with notice .. 327 32.30 Administrative consent orders.. 336 32.11 Documentation.. 327 32.31 Approved consent orders.. 336 32.12 Evidence in support.. 327 32.32 Costs in consent orders.. 336 32.13 Weight attached to written evidence.. 328 Drawing up interim orders.. 336 32.14 Bundles of documents.. 329 32.33 Drawing up consent orders.. 336 32.15 Skeleton arguments.. 330 32.34 Drawing up non-consent 32.16 Authorities in skeleton arguments.. 330 interim orders.. 337 32.17 Chronologies.. 331 Review of interim decisions.. 337 32.18 Draft orders.. 331 32.35 Reconsideration.. 337 32.19 Service.. 331 32.36 Varying and revoking orders.. 337 32.20 Disposal without a hearing.. 331 32.37 Reviewing interim applications.. 338 The following procedural checklists, which are in appendix 1, are relevant to this chapter: Procedural checklist 20 Interim application without notice Procedural checklist 21 Interim application with notice INTRODUCTION 32.1 Interim applications are made when a party to proceedings seeks an order or directions from the court prior to the substantive hearing of the claim. Parties seeking interim orders or directions in general have to issue an application notice in form N244, pay a court fee, and often have to provide written evidence in support. The application notice and evidence must in general be served at least three clear days before the return date. Generally, service will be effected by the court, although an applicant may notify the court that he wishes to serve himself (CPR, r. 6.3(1)). Chapters 33 to 41 deal with various types of interim application, such as for summary judgment, interim injunctions, freezing injunctions and search orders. Applications for disclosure orders, such as specific disclosure and pre-action disclosure, are dealt with in chapter 48. Various other types of application are considered elsewhere, such as applications for alternative service in 15.37, setting aside default judgments in 20.9 to 20.16, for further information in 30.6 and for amendment in chapter 31. There is a separate code of procedure for applications in insolvency proceedings, which is considered in chapter 81. In most cases there should be a limited need for making interim applications because of the level of involvement of the judiciary in case management. Part of the obligation placed on 322 Chapter 32 Applications and Interim Orders the courts in furthering the overriding objective is to consider whether the likely benefits of taking a particular step will justify the cost of taking it (r. 1.4(2)(h)). The court is also required to deal with as many aspects of the case as is practicable on the same occasion (r. 1.4(2)(i)). In fast track and multi-track cases the procedural judge will scrutinise defended claims shortly after defences are filed, and there will be further judicial consideration of the case at the listing for trial stage (see chapters 42, 44 and 45). A party contemplating a particular order may ask the court to consider it during the scrutiny process. Whenever the parties are notified that an interim hearing, such as a case management conference or listing hearing, has been fixed, they must consider and make any application which may be appropriate for the court to deal with at the hearing (PD 23, para. 2.8; PD 28, para. 2.5 (fast track cases); PD 29, para. 3.5 (multi-track cases)). Consequently, most interim orders are made as part of the regular case management system. Further, there is a general obligation to make all interim applications as soon as it becomes apparent they are necessary or desirable (PD 23, para. 2.7). The CPR permit the court to make interim orders on its own initiative, and to hold hearings by telephone or other direct means of communication. The ordinary rule is that interim hearings are in public, although there are significant exceptions. A distinction needs to be drawn between applications for directions and applications for interim remedies. A somewhat more formal approach is taken with applications for interim remedies, which should in almost all cases be supported by written evidence (see CPR, r. 25.3(2)). The distinction is between: (a) case management matters, such as standard disclosure of documents, exchange of factual and expert evidence, and trial directions, and (b) applications for specific remedies, such as specific disclosure, interim injunctions, interim payments and striking out. There is a further important distinction between interim applications made without giving notice to any other parties, and those made on notice. This distinction will be considered further at 32.7 and 32.10. TO WHICH COURT SHOULD AN APPLICATION BE MADE? In general an application must be made to the court where the claim is presently being dealt 32.2 with. This will be the court where the proceedings were commenced (CPR, r. 23.2(1)), unless: (a) the claim has been transferred (r. 23.2(2)); (b) the claim has been listed for trial at another court, in which event the application should be made to the trial court (r. 23.2(3)); or (c) the application is made after judgment, in which event the application may need to be made to the court dealing with enforcement (r. 23.2(5)). An application for pre-action remedies (such as some injunction, freezing injunction and search order applications) should be made to the court where the substantive proceedings are likely to be brought, unless there is a good reason for applying to another court (r. 23.2(4)). Rule 2.7 gives the court a general power to deal with a case at any place that it considers appropriate. This power may be used in courts with shared listing arrangements, and where a court with congested lists arranges to release some cases to another court to reduce listing delays. 323 Part H Interim Applications WHICH JUDGE SHOULD DEAL WITH AN APPLICATION? 32.3 Unless otherwise provided for by an Act, rule or practice direction, interim applications can be dealt with by judges, masters and district judges (CPR, r. 2.4). The most significant exceptions are freezing injunctions and search orders, which are dealt with by High Court judges, and ordinary interim injunctions, which are generally dealt with by a judge who would have jurisdiction to try the claim (see PD 25, para. 1.3; PD 2B, para. 2). In the county courts this means that circuit judges will deal with interim injunction applications in most multi-track claims, but district judges may hear such applications in small claims and fast track cases (see 2.4), and also in a number of other types of claim (PD 2B, para. 11.1). High Court masters and district judges may grant interim injunctions by consent, in connection with charging orders and receivers and in aid of execution (see 2.10). Apart from injunctions, most applications are dealt with by masters and district judges, but they may refer particular applications to be dealt with by a judge (PD 23, para. 1). Applications to a High Court judge in the Chancery Division are made to the Interim Applications Judge (Chancery Guide, para. 5.7). An application notice must be used, which should usually state that it is to be heard by ‘the Interim Applications Judge’. In the Chancery and Queen’s Bench Divisions there are arrangements for assigning claims to individual masters. Once assigned a claim may be transferred to another master, and the fact that a claim has been assigned does not prevent it being dealt with by another master (PD 2B, para. 6.2). However, the usual rule is that once a claim is assigned all applications in that claim will be dealt with by the assigned master. STAGE WHEN INTERIM REMEDIES SHOULD BE SOUGHT OR CONSIDERED 32.4 The basic rules are that interim applications should be made as early as possible (PD 23, para. 2.7), but after the party making the application has come on to the court record. For a claimant this is after proceedings are issued, and for a defendant it is after service is acknowledged or a defence is filed (CPR, r. 25.2(2)). PRE-ACTION INTERIM REMEDIES 32.5 A claimant may exceptionally make an application for an interim order before the commencement of proceedings (see CPR, r. 25.2(2)(b)) if either: (a) the matter is urgent; or (b) it is otherwise desirable to grant the interim remedy before the claim is brought in the interests of justice. The courts may thus entertain pre-commencement applications for urgent interim injunctions (such as some libel cases where publication is threatened within hours of the applicant finding out about the matter) and some applications for freezing injunctions and search orders.