Interim Applications
An interim application is one that is made before trial. The application is made using an application notice (form N244) and will seek a particular order or direction to resolve a preliminary issue(s) in the case.
This might include disposing of the case without trial because of its weakness or applying for an interim payment to help the claimant manage financially before the trial date. Generally, witnesses will not be called during an interim hearing and the hearing itself will usually take place ‘in chambers' (a private room with the parties' representatives and the judge present). The parties will be seated when speaking. The judge will also usually reach a decision at the end of the hearing rather than reserving judgment for a later date.Some interim applications can be made without notifying the other party and these are known as ‘without notice' applications. Examples include urgent injunctions.
Interim applications are made using an application notice form with a supporting statement (witness statement or in some cases an affidavit). The procedure for making such applications is set out in CPR Part 23. You can find a template form for an application notice and all other court forms by visiting www.gov.uk.
The procedure under CPR Part 23 PD 23A should be read and followed in conjunction with the specific rule that applies to the type of application being made. For example, setting aside a default judgment requires an additional process set out in CPR 13. For summary judgments the relevant CPR is Part 24 and for interim payments it is CPR Part 25. These must all be read in conjunction with CPR Part 23 PD 23A.
In addition to following CPR Part 23 and the relevant rule and practice direction for the specific type of application, it is important to note that some types of actions have their own specific rules and practice directions that may also be relevant.
For example, CPR Part 53 and PD 53B cover media and communication claims, CPR Part 54 and PD 54A cover judicial reviews, CPR Part 55 and PD 55 A & B cover possession claims in landlord and tenant disputes claims, and CPR Part 63 and PD 63 cover intellectual property claims.The nature of the advocacy involved in an interim application is different from a trial because the arguments focus on the criteria and requirements to be met for making the application rather than attempting to prove the factual matters in dispute within the case itself.
An interim application can be made by either the claimant or the defendant. Whoever makes the application will be termed ‘applicant’ on the documentation and the opposing party will be known as the ‘respondent’.
6.5.1 Applicants
The applicant will always speak first and introduce themselves and their opponent. Applicants should also ideally:
• Ask the judge if he/she has had a chance to read the papers.
• If the opponent has made a cross-application, then the applicant will need to explain to the court that there are two applications and explain in which order they will deal with the applications - this will usually be the applicant’s own application first.
• Explain the nature of the application by reference to the relevant CPR and the precise section(s) of the rules and practice directions.
• Refer the judge to the relevant application documents; these will usually be in a pre-prepared court bundle and, for example, include witness statements but may also include medical reports or a schedule of losses (for personal injury/clini- cal negligence cases).
• Set out the nature of the order sought and the reasons why - this will involve referring to relevant facts, the relevant law and the procedural rules.
• If any procedural irregularities have been identified in the applicant’s application, find the relevant rule that will allow the court to cure the defect or allow the application to proceed regardless of procedural breaches.
This can usually be found within CPR Part 3 which relates to the courts’ case management powers.• Refer to the overriding objective under CPR Part 1 to help the court arrive at a decision that supports the client’s case, for example, “by putting the parties on an equal footing” or by “ensuring the case is dealt with expeditiously and fairly”.
• Explain what orders/directions the court should make.
• In the case of successful applications, make an order for summary assessment of costs. These are costs related to the work for the interim application that is assessed on the day of the hearing rather than waiting until after the trial for a final assessment of the costs of the whole case.
6.5.2 Respondents
The respondent will speak after the applicant has made their submissions. However, if there is a counter application it may be appropriate for the respondent to speak first, and this will be decided and agreed with the judge. The respondent should:
• Make clear that the application is opposed and why.
• Use both the facts, relevant authorities (law) and procedural rules to support the contention that the applicant’s application should be dismissed.
• Use the court bundles (the respondent will prepare their own) and refer to any factual weaknesses in the applicant’s application.
• Make the judge aware of any procedural irregularities (if any) with the applicant’s application and explain if and where there has been a failure to follow a particular procedural rule.
• Refer to the overriding objective under CPR Part 1 to help the court arrive at a decision that supports the client’s case, for example, by “dealing with the case in a way that is proportionate to costs” or “saving expense”.
• Ask the court to dismiss the applicant’s application and make an order for summary assessment of costs.
• If successful and the applicant’s application is dismissed, make an order for summary assessment of costs. If unsuccessful, challenge the amount that the applicant seeks on a summary assessment of costs.
As we have discussed in Chapter 4, some types of action have their own pre-action protocol. This is a process that must be followed before court proceedings can be issued. Go to the www.gov.uk website and see if you can find out how many preaction protocols currently exist.
Each pre-action protocol must be read in conjunction with the Practice Direction on Pre-action Conduct and Protocols. If no pre-action protocol exists for a particular type of action, then this practice direction alone is followed. If a pre-action protocol does exist, then the practice direction must still be followed but only part of it will apply (see para 6 of the Practice Direction). Failure to follow the practice direction can lead to the court making sanctions such as costs orders with or without a penalty applied and deprivation of entitlement to interest on the claim (see paras 15 and 16).
A judge can decide to grant or refuse an application and make a directions order setting out what further steps are to be taken in the case. The directions might include disclosure of documents by mutually or sequentially exchanging a list of documents or serving further witness statements or expert evidence.
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