Progressing a claim - Procedure for making applications

Learning Outcomes

This article provides a practical overview of how interim applications are made and determined under the Civil Procedure Rules. It sets out:

• the core mechanics of CPR Part 23, including where to file, what to include on an application notice, service, clear days, draft orders, and how hearings are conducted (including telephone/video hearings)
• evidential approaches for applications (witness statements, affidavits, statements of case with statements of truth), and when full and frank disclosure is required
• the specific procedures, tests and timing rules for summary judgment (CPR Part 24), interim payments (CPR Part 25), interim injunctions (CPR Part 25) including freezing injunctions and search orders, and security for costs (CPR rr 25.12–25.15)
• typical orders the court may make on interim applications, alongside the costs consequences and summary assessment requirements
• how and when applications may be made without notice, the safeguards imposed (return dates and cross‑undertakings in damages), and the respondent’s right to apply to set aside or vary.

Applying these rules accurately to given facts will enable you to select the single best answer when faced with timing, evidence, venue, and threshold tests for the main interim remedies.

SQE1 Syllabus

For SQE1, you are required to understand how to make interim applications during the course of civil litigation and to 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, with a focus on the following syllabus points:

• the general procedure for making applications under CPR Part 23, including notice requirements, clear days, and evidence
• where to make an application (CPR 23.2), what a draft order should contain, and the requirement to file a statement of costs for interim hearings
• 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 grounds and discretionary factors for security for costs (CPR 25.12–25.15)
• the possible costs consequences of interim applications, including summary assessment and common interim costs orders.

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).

Interim applications must be consistent with the overriding objective (CPR 1.1), which emphasises fairness, proportionality, and efficient case management. Courts expect parties to apply as soon as it is apparent an application is necessary, to identify the appropriate forum and level of judge, and to ensure the application is properly supported by evidence and a precise draft order. Many applications can be listed alongside already‑fixed case management events to save time and costs.

This article outlines the general procedure under CPR Part 23 and then examines the specific requirements for key interim applications tested in SQE1: summary judgment, interim payments, interim injunctions (including freezing injunctions and search orders), and security for costs.

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.

Where to apply (CPR 23.2)

An application should be made to the court or County Court hearing centre where the claim was started. If the claim has been transferred or sent to another court for trial, the application must be made to that destination court. Identifying the correct venue avoids delay and ensures the application is dealt with by the judge managing the case.

The Application Notice (Form N244)

The starting point for most applications is the application notice, 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:

• the order sought
• the grounds (briefly explaining why the order is sought)
• whether a hearing is requested, and the time estimate for it
• any fixed trial date or period that may be affected
• the level of judge required
• who should be served with the application.

Applicants should attach a draft order reflecting precisely the relief sought. Clear, enforceable wording is essential; orders with ambiguous or overly technical phrasing risk being ineffective.

Evidence

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

• Witness statements should set out the facts relied upon and exhibit any key documents. They must comply with CPR Part 32 and Practice Direction 32 and include a statement of truth.
• Statements of case can be relied upon if verified by a statement of truth where appropriate.
• Affidavits are required for certain applications (notably freezing injunctions and search orders) given their gravity and the need for sworn evidence.

Where an application is made without notice, the applicant owes a duty of full and frank disclosure. All material facts—favourable and adverse—must be put before the court, together with an explanation for the lack of notice.

Draft orders and statements of costs

Applicants should file a draft order with the application. For interim hearings of one day or less, parties should also file and serve a signed statement of costs (often using Form N260) no later than 24 hours before the hearing to facilitate summary assessment.

Service and clear days

The general rule (CPR 23.7) is that a copy of the application notice and any supporting evidence must be served on the respondent 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. Clear days exclude the day of service and the day of the hearing. Where specific time limits are prescribed (e.g., CPR 24 for summary judgment), those prevail.

Service must comply with CPR Part 6. If the court will serve the application, the applicant must file any written evidence to accompany service. For documents other than the claim form, deemed service rules and the “before 4.30 p.m.” convention apply; timing can be critical when counting clear days.

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., freezing injunction or search order)
• a rule or Practice Direction permits it
• all parties consent
• or where the application will be made orally at an already fixed hearing because there was insufficient time to serve formal notice, provided informal notice is given where possible.

An applicant making a without notice application has a duty of full and frank disclosure. 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. A return date is typically fixed to allow the order to be reviewed inter partes. PD 25A prescribes additional specific steps for urgent injunctions, including filing the application notice, evidence and draft order at least two hours before the hearing where possible.

Consent Orders

If all parties agree the terms of an order, a consent order (CPR 40.6) can be submitted, often avoiding the need for a hearing. For settlements involving detailed terms and ongoing obligations, parties frequently use a Tomlin order, staying the proceedings on terms in a confidential schedule and enabling swift enforcement if the schedule’s terms are breached.

Hearings

Many straightforward interim applications with time estimates under one hour may be dealt with by telephone or video conference (PD 23A para 6). The court will decide the appropriate format. The applicant should ensure:

• a realistic time estimate (ideally agreed between parties)
• all evidence, draft order and relevant authorities are filed and served in time
• a statement of costs is filed and served at least 24 hours before the hearing.

The court’s case management approach prioritises efficiency and proportionality; where possible, applications may be listed to coincide with case management conferences or pre‑trial reviews.

Specific Interim Applications

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

Summary Judgment (CPR Part 24)

This procedure allows the court to decide a claim or a particular issue without a full trial if one party’s case has no real prospect of success and there is no other compelling reason for trial.

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. 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” describes a prospect that is realistic rather than fanciful. The court will not conduct a mini‑trial. A “compelling reason” may include complex factual disputes requiring oral evidence, the need for expert evidence, or issues of broader public interest.

Practice Direction 24 confirms summary judgment may be based on a point of law (including construction), the evidence reasonably expected at trial (or lack of it), or a combination of both.

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 after service of particulars of claim and acknowledgment/defence.
• 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 any evidence in reply at least 3 days before the hearing.

Possible Orders:

• judgment on the claim or issue
• dismissal of the claim or issue
• dismissal of the application (case proceeds)
• a conditional order (e.g., payment into court, or requiring a party to file a properly particularised statement of case)
• appropriate costs orders.

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. A bare denial is unlikely to show a real prospect of successfully defending the claim. The claimant would file Form N244, supported by a witness statement exhibiting invoices, statements of account, and relevant correspondence, and argue there is no other compelling reason for trial.

Interim Payments (CPR Part 25, Section II)

This allows a claimant to obtain a payment on account 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 or some other sum of money to the claimant
• the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) 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 (other than costs) against the defendant
• certain possession claims where occupational payments are likely
• in claims with multiple defendants, where the court is satisfied the claimant would obtain substantial judgment against at least one defendant and all defendants against whom the order is sought are insured or are a public body (including statutory RTA insurance/insurer liability).

Procedure:

• The application notice and supporting evidence must be served at least 14 days before the hearing.
• Evidence should cover the amount sought; the basis of calculation; why CPR 25.7’s conditions are met; any contributory negligence or set‑off/counterclaim issues; and, for personal injury claims, a schedule of loss with supporting medical evidence.
• The court exercises discretion; it will not order payment exceeding a reasonable proportion of the likely final judgment. It must consider potential reductions for contributory negligence or set‑off.

Worked Example 1.2

A claimant has suffered serious injury at work. Liability is admitted, but quantum will take many months to resolve. The claimant seeks £40,000 as an interim payment to meet living and rehabilitation costs. Evidence includes medical reports and a detailed schedule of past and future losses.

Answer:
The claimant should apply for an interim payment under CPR 25.7 based on the admission of liability. The court is likely to order an interim payment reflecting a reasonable proportion of the likely final award, taking into account any contributory negligence pleaded and ensuring the interim sum does not overcompensate.

Revision Tip

Financial hardship is not a required ground for an interim payment application. The court focuses on the statutory conditions and whether the sum represents a reasonable proportion of the likely final award.

Interim Injunctions (CPR Part 25, Section I)

Interim injunctions require or prohibit specific acts pending 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 and guidelines:

As equitable and discretionary relief, injunctions are generally granted only where damages would be inadequate. The guidelines from American Cyanamid Co v Ethicon Ltd [1975] AC 396 are commonly applied:

• there is a serious question to be tried (the claim must not be frivolous or vexatious)
• damages would not be an adequate remedy for the applicant if they succeed at trial
• if damages would be inadequate for the applicant, consider whether damages would be adequate for the respondent under the applicant’s cross‑undertaking if the injunction is wrongly granted
• where doubt remains, consider the balance of convenience
• if the balance is even, maintain the status quo ante
• as a last resort, consider relative merits.

Applicants ordinarily give a cross‑undertaking in damages, promising to compensate the respondent (and sometimes third parties) if it later transpires the injunction should not have been granted.

Procedure:

• Application made using Form N244 with supporting evidence; affidavits are frequently required for freezing and search orders.
• Usually made on notice with service at least 3 clear days before the hearing. Without notice applications may be made where urgency or secrecy demands it, with strict full and frank disclosure obligations and a return date to revisit the order inter partes.
• Draft orders should include a penal notice, specify clear prohibitions/requirements, and record the cross‑undertaking.

Special Types:

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

Freezing orders usually require evidence of a good arguable case, identified assets (in or out of the jurisdiction), and a real risk of dissipation. They are commonly made without notice, supported by affidavit, and may include ancillary disclosure orders to identify assets. Living expenses and ordinary business payments may be permitted within limits.

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

Search orders demand very strong prima facie evidence, serious potential harm, clear evidence the respondent possesses incriminating items, and a real possibility of destruction if warned. They include safeguards such as supervision by an independent supervising solicitor, strict respect for privilege, and clear instructions about scope and conduct.

Worked Example 1.3

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 restraining use or disclosure of the confidential client lists. It should demonstrate a serious issue to be tried (breach of confidence), inadequacy of damages given the difficulty of quantifying loss of clients and goodwill, and a balance of convenience favouring the injunction. A cross‑undertaking will be required. If destruction of evidence is feared, a search order might also be considered, subject to the stringent safeguards.

Security for Costs (CPR 25.12–25.15)

Security for costs protects a defendant against the risk of being unable to recover costs if they successfully defend the claim.

Key Term: Security for Costs
An order requiring the claimant to provide security (e.g., payment into court, bank guarantee) for the defendant’s costs of the proceedings, where specified grounds and discretionary factors are satisfied.

Grounds (CPR 25.13): The court may order security where it is just to do so and one or more grounds apply, including:

• the claimant is resident out of the jurisdiction in a country where enforcement may be difficult
• the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so
• the claimant has taken steps relating to assets that would make enforcement of a costs order more difficult
• other grounds specified in the rule.

Security remains discretionary. The court weighs whether ordering security would stifle a genuine claim, the claimant’s financial position (and whether impecuniosity was caused by the defendant), delay in making the application, and overall proportionality. The amount and form of security (payment into court, bank guarantee, undertaking) are tailored to the case; the court often sets a figure reflecting a realistic proportion of likely recoverable costs.

Procedure:

• Apply on notice via N244 with evidence showing the relevant ground(s), the quantum of likely costs, and why it is just to order security.
• Serve at least 3 clear days before the hearing (unless a different time limit is directed).
• The court may order staged security, set time limits for provision, and impose consequences for non‑compliance (including stay or strike out).

Worked Example 1.4

D Ltd defends a high‑value commercial claim brought by CCo, a foreign company with no assets in England and Wales. D Ltd believes that, even if it succeeds, recovering costs abroad will be difficult. It seeks a £150,000 payment into court as security.

Answer:
D Ltd should apply for security for costs under CPR 25.13 on the basis that the claimant is resident out of the jurisdiction and enforcement is likely to be difficult. The court will consider whether security is just in all the circumstances, the size and stage of the case, whether security would stifle a genuine claim, and proportionality. If satisfied, the court may order payment into court or accept suitable alternative security.

Exam Warning

Do not confuse the requirements for different applications. Summary judgment requires “no real prospect of success” and “no other compelling reason for trial.” Interim payments turn on statutory grounds and a reasonable proportion of likely damages. Injunctions apply the American Cyanamid guidelines and require a cross‑undertaking. Security for costs requires both a qualifying ground and a discretionary assessment of whether it is just.

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, but the court has wide discretion.

Common interim costs orders include:

• costs in any event (the successful applicant will recover the application costs regardless of the outcome of the case)
• costs in the case / costs in the application (the costs follow the final outcome of the case)
• costs reserved (decision on costs is deferred)
• no order as to costs (each party bears their own costs of the application)
• wasted costs (exceptionally, where the court considers a legal representative has caused unnecessary costs by improper conduct).

For hearings lasting one day or less, the court will usually conduct a summary assessment of costs immediately. Parties should file and serve a signed statement of costs at least 24 hours before the hearing to facilitate summary assessment.

Key Point Checklist

This article has covered the following key knowledge points:

• CPR Part 23 governs most interim applications; identify the correct court (CPR 23.2), prepare a clear N244, attach a precise draft order, and support with evidence.
• Service must be at least 3 clear days before the hearing unless a rule or direction specifies otherwise; “clear days” exclude the day of service and the day of the hearing.
• Applications without notice are exceptional and require full and frank disclosure; a return date allows inter partes review and the respondent may apply to set aside or vary.
• Summary judgment (CPR 24) is appropriate where a party has no real prospect of success and there is no other compelling reason for trial; observe the 14/7/3‑day evidence timetable.
• Interim payments (CPR 25.7) provide on‑account relief where statutory conditions are met; the sum ordered is a reasonable proportion of the likely final award.
• Interim injunctions (CPR 25) are equitable and discretionary; apply the American Cyanamid guidelines, include a cross‑undertaking in damages, and tailor orders (including penal notices and safeguards).
• Special injunctions include freezing injunctions (to prevent dissipation of assets) and search orders (to preserve evidence), both ordinarily supported by affidavits and strict safeguards.
• Security for costs (CPR 25.13) protects defendants where specified grounds apply and it is just to order security; consider enforcement difficulties, stifling, proportionality, and timing.
• Interim application costs are commonly summarily assessed; typical orders include costs in any event, costs in the case, costs reserved, no order, and in rare cases wasted costs.

Key Terms and Concepts

• Application Notice
• Summary Judgment
• Interim Payment
• Interim Injunction
• Freezing Injunction
• Search Order
• Security for Costs