Progressing a claim - Procedure for making applications

Learning Outcomes

This article provides an overview of the procedure for making interim applications within civil litigation proceedings under the Civil Procedure Rules (CPR). It explains the general requirements for making applications, including the use of application notices and evidence, and details the specific procedures for common interim applications such as summary judgment, interim payments, and interim injunctions (including freezing injunctions and search orders). Your understanding of these procedures will enable you to identify and apply the relevant rules and principles to SQE1-style single best answer MCQs.

SQE1 Syllabus

For SQE1, you need a practical understanding of how to make interim applications during the course of civil litigation. You should be familiar with the general procedural rules under CPR Part 23 and the specific rules governing key applications like summary judgment (CPR Part 24) and interim remedies (CPR Part 25). Your ability to apply these rules correctly in given scenarios will be assessed.

As you work through this article, ensure your revision covers:

• the general procedure for making applications under CPR Part 23, including notice requirements and evidence
• the purpose, procedure, and evidential requirements for summary judgment applications under CPR Part 24
• the purpose, procedure, and evidential requirements for applications for interim payments under CPR Part 25
• the purpose, procedure, and evidential requirements for applications for interim injunctions under CPR Part 25, including freezing injunctions and search orders
• the possible costs consequences of interim applications.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which CPR Part governs the general procedure for making applications to the court during proceedings?
   1. Part 22
   2. Part 23
   3. Part 24
   4. Part 25
2. What is the general notice period required for serving an application notice before a hearing?
   1. 1 clear day
   2. 3 clear days
   3. 7 clear days
   4. 14 clear days
3. Which TWO of the following conditions must be met for a court to grant summary judgment under CPR 24.2?
   1. The respondent has no real prospect of success.
   2. The applicant has a very strong case.
   3. There is no other compelling reason for trial.
   4. The application is made promptly.

4. True or false? A claimant applying for an interim payment must always show financial hardship.

Introduction

During the course of civil litigation, it often becomes necessary for one party to ask the court to make a specific order or give directions before the final trial. These requests are made through formal 'interim applications'. Understanding the correct procedure for making these applications is essential for progressing a claim effectively and complying with the Civil Procedure Rules (CPR).

This article outlines the general procedure under CPR Part 23 and then examines the specific requirements for some common and important interim applications tested in SQE1: summary judgment, interim payments, and interim injunctions.

General Procedure for Making Applications (CPR Part 23)

CPR Part 23 provides the framework for most interim applications. Unless a specific rule or Practice Direction states otherwise, this procedure should be followed.

The Application Notice (Form N244)

The starting point for most applications is the 'application notice'. This is typically made using Form N244.

Key Term: Application Notice
A formal document filed with the court by a party (the applicant) requesting a specific court order or direction during the course of proceedings.

The application notice must clearly state:

• What order the applicant is seeking.
• Why the applicant is seeking the order (the grounds).

It should also include details such as the estimated hearing length and the level of judge required.

Evidence

Applications must usually be supported by evidence, explaining the factual basis for the request.

• Witness Statements: This is the most common form of evidence, setting out the facts relied upon. It must comply with CPR Part 32 and Practice Direction 32, and include a statement of truth.
• Affidavits: In certain specific applications (e.g., freezing injunctions, search orders), evidence must be given by affidavit – a statement sworn before an authorised person.
• Statements of Case: A party can sometimes rely on facts already set out in their statement of case (e.g., particulars of claim or defence), provided it is verified by a statement of truth.

Service

The general rule (CPR 23.7) is that a copy of the application notice and any supporting evidence must be served on the respondent (the other party) as soon as practicable after filing with the court, and at least 3 clear days before the court is due to deal with the application (the hearing date). 'Clear days' exclude the day of service and the day of the hearing. Service must comply with CPR Part 6.

Applications Without Notice

In exceptional circumstances, an application can be made 'without notice' to the respondent (CPR 23.4, PD 23A para 3). This is usually only permitted where:

• There is exceptional urgency.
• Secrecy is essential (e.g., for a freezing injunction or search order, where giving notice would defeat the purpose of the application).
• A court order, rule, or Practice Direction permits it.
• All parties consent.

An applicant making a without notice application has a duty of full and frank disclosure. They must inform the court of all material facts, including those adverse to their own application. If an order is made without notice, the applicant must serve the order, the application notice, and the evidence on the respondent, who then has the right to apply to set aside or vary the order (usually within 7 days).

Consent Orders

If all parties agree on the terms of an order, they can apply for a consent order (CPR 40.6). This usually avoids the need for a hearing. The proposed order must be drawn up, expressed as being 'By Consent', and signed by the legal representatives of all parties concerned.

Hearings

Many straightforward interim applications, especially those with a time estimate of less than one hour, may be dealt with by telephone or video conference (PD 23A para 6). The court will decide the appropriate format.

Specific Interim Applications

While CPR Part 23 provides the general rules, specific rules apply to certain types of applications.

Summary Judgment (CPR Part 24)

This procedure allows the court to decide a claim or a particular issue without a full trial if it is clear that one party's case has no real prospect of success.

Key Term: Summary Judgment
A judgment on a claim or a particular issue without a trial, granted where the court considers that the respondent has no real prospect of succeeding and there is no other compelling reason for a trial.

Grounds (CPR 24.2): The court may give summary judgment if:

1. It considers that the claimant has no real prospect of succeeding on the claim or issue; OR the defendant has no real prospect of successfully defending the claim or issue; AND
2. There is no other compelling reason why the case or issue should be disposed of at a trial.

'No real prospect' means a prospect that is realistic rather than fanciful (Swain v Hillman). The court should not conduct a mini-trial but assess the available evidence. A 'compelling reason' might exist if, for example, complex facts require investigation, or the case involves significant public interest.

Procedure:

• A claimant cannot apply until the defendant has filed an acknowledgment of service or a defence (unless the court gives permission). A defendant can apply at any time.
• The application notice and evidence must be served at least 14 days before the hearing (CPR 24.4(3)).
• The respondent must file and serve evidence in response at least 7 days before the hearing.
• The applicant may file and serve evidence in reply at least 3 days before the hearing.

Possible Orders:

• Judgment on the claim (for the claimant).
• Dismissal of the claim (for the defendant).
• Dismissal of the application (case proceeds).
• Conditional order (e.g., requiring a party to pay money into court to continue).

Worked Example 1.1

A claimant issues a claim for an unpaid debt of £50,000. The defendant files a defence simply stating "The debt is denied." The claimant believes this discloses no reasonable grounds for defence. What application might the claimant consider making?

Answer: The claimant could consider applying for summary judgment under CPR Part 24. The defence appears very weak, potentially offering 'no real prospect of successfully defending the claim'. The claimant would file Form N244, supported by evidence (likely a witness statement exhibiting relevant invoices/correspondence) explaining why the defence has no real prospect of success and arguing there is no other compelling reason for trial.

Interim Payments (CPR Part 25, Section II)

This allows a claimant to obtain an advance payment of damages before the final judgment.

Key Term: Interim Payment
A payment on account of any damages, debt or other sum (excluding costs) which the court may hold the defendant liable to pay.

Grounds (CPR 25.7): The court may only make an order if one of the following conditions is met:

• The defendant has admitted liability to pay damages.
• The claimant has obtained judgment for damages to be assessed.
• The court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant. (Note: 'would', not 'might' or 'likely to').
• Specific grounds relating to claims for possession of land.
• Specific grounds relating to claims against multiple defendants where at least one is insured or a public body.

Procedure:

• The application notice and supporting evidence must be served at least 14 days before the hearing.
• Evidence must cover the amount sought, basis of calculation, grounds for believing a condition in CPR 25.7 is met, and details of damages/losses.
• The court has discretion and will not order a payment exceeding a 'reasonable proportion' of the likely final judgment.
• The court must take into account contributory negligence and any potential set-off or counterclaim.

Revision Tip

Financial hardship is not a required ground for an interim payment application, although evidence of need might influence the court's discretion regarding the amount and timing.

Interim Injunctions (CPR Part 25, Section I)

These are orders requiring a party to do something (mandatory injunction) or refrain from doing something (prohibitory injunction) pending the trial.

Key Term: Interim Injunction
A temporary court order compelling a party to do, or refrain from doing, a specific act until the trial or further order.

General Principles:

• Injunctions are an equitable and discretionary remedy.
• They are only granted where damages would not be an adequate remedy.
• The court applies the guidelines from American Cyanamid Co v Ethicon Ltd [1975] AC 396:
  1. Is there a serious question to be tried? (Is the claim not frivolous or vexatious?)
  2. Would damages be an adequate remedy for the applicant if they win at trial? (If yes, no injunction).
  3. If damages would not be adequate for the applicant, would damages be an adequate remedy for the respondent if the injunction is wrongly granted? (Considering the applicant's cross-undertaking).
  4. If doubt remains, where does the balance of convenience lie? (Considering relative harm to each party).
  5. If the balance is even, maintain the status quo ante (the position before the conduct complained of).
  6. As a last resort, consider the relative merits of the case.

Procedure:

• Application made using Form N244 with supporting evidence (often an affidavit, especially for freezing/search orders).
• Usually made on notice (3 clear days), but can be without notice in urgent/secret situations.
• Applicant must normally give a cross-undertaking in damages – a promise to compensate the respondent if it later turns out the injunction should not have been granted.

Special Types:

Key Term: Freezing Injunction
An interim prohibitory injunction restraining a party from removing assets from the jurisdiction or disposing of assets within the jurisdiction, to prevent a judgment being frustrated.

• Requires strong evidence of a good arguable case, assets existing, and a real risk of dissipation.
• Application made without notice to the High Court, supported by affidavit, with full and frank disclosure.

Key Term: Search Order
An interim mandatory injunction requiring a respondent to allow the applicant's representatives to enter premises to search for and seize specified documents or property.

• Requires very strong prima facie case, evidence of serious potential harm to applicant, clear evidence respondent has incriminating items and a real possibility of destruction.
• Application made without notice to the High Court, supported by affidavit.
• Includes safeguards like supervision by an independent supervising solicitor.

Worked Example 1.2

A company (C Ltd) discovers that a former employee (X) has emailed confidential client lists to a competitor (Y Ltd). C Ltd believes X is about to start working for Y Ltd and will use the lists to solicit C Ltd's clients. C Ltd wants to stop X and Y Ltd from using the lists immediately. What interim application should C Ltd consider?

Answer: C Ltd should consider applying for an interim prohibitory injunction against both X and Y Ltd. The injunction would seek to restrain them from using or disclosing the confidential client lists pending a full trial. C Ltd would need to show a serious question to be tried (breach of confidence/contract), that damages would be inadequate (loss of clients/goodwill is hard to quantify), and that the balance of convenience favours granting the injunction. Given the risk of immediate commercial harm, C Ltd might consider applying without notice, providing full disclosure. They would likely need to give a cross-undertaking in damages.

Exam Warning

Do not confuse the requirements for different applications. Summary judgment requires 'no real prospect of success', interim payments focus on likelihood of obtaining a substantial sum, and injunctions use the American Cyanamid guidelines focusing on the balance of convenience and adequacy of damages.

Interim Costs Orders

At the conclusion of most interim application hearings, the court will make an order regarding the costs of that specific application. The general rule is that the unsuccessful party pays the successful party's costs. Common costs orders include:

• Costs in any event: The winner of the application recovers their costs regardless of the final outcome of the case.
• Costs in the case / Costs in the application: The costs follow the final outcome of the case – whoever wins overall gets these costs.
• Costs reserved: The decision on costs is deferred to a later date (often the trial).
• No order as to costs: Each party bears their own costs of the application.

For hearings lasting one day or less, the court will usually conduct a summary assessment of costs immediately.

Key Point Checklist

This article has covered the following key knowledge points:

• Interim applications are made during proceedings using an application notice (Form N244), supported by evidence (usually a witness statement).
• General procedure is governed by CPR Part 23, requiring service at least 3 clear days before the hearing.
• Applications without notice are exceptional and require full and frank disclosure.
• Summary judgment (CPR Part 24) can dispose of a claim/defence with no real prospect of success where there's no other compelling reason for trial.
• Interim payments (CPR Part 25) provide an advance on likely damages where certain conditions (e.g., admission of liability, likely substantial judgment) are met.
• Interim injunctions (CPR Part 25) maintain the status quo pending trial and are granted based on the American Cyanamid guidelines, considering damages adequacy and balance of convenience.
• Special injunctions include freezing injunctions (prevent asset dissipation) and search orders (allow premises search for evidence), both requiring strong evidence and usually made without notice.
• Costs of interim applications are usually summarily assessed at the hearing, often following the 'loser pays' principle.

Key Terms and Concepts

• Application Notice
• Summary Judgment
• Interim Payment
• Interim Injunction
• Freezing Injunction
• Search Order