CIVIL LITIGATION – ADVOCACY

Chapter 10 – Applications to the court

 Where to make the application

 r 23.2 - to court where claim has started, or court to where the claim has been transferred.
 If claim has listed for trial, it must be made to the court where the trial is to take place.
 Application before claim form issued - made to court where proceedings will be started.
 Designated Money Claim - any pre-action application can be made in any county court.
 Content of the application notice
 r 23.6 - must state what order the applicant is seeking and why seeking that order.
 If rely on matters set out in application notice as evidence at hearing, must be verified by
statement of truth.
 Draft order
 PD 23A - the applicant should attach a draft of the order sought.
 Evidence in support of the application
 PD 23A para 9.1 - where no specific requirement to provide evidence – keep in mind court
will need to be satisfied by evidence of facts that are relied on.
 Witness statement and/or contents of a statement of case or the application notice.
 Evidence must be filed at the court as well as served on the parties with application notice.
 Any evidence in response must be served as soon as possible.
 Service of the application notice
 served at least three clear days before the court is to deal with the application.
 Must be accompanied by copy of supporting written evidence and a copy of any draft order.
 Consent orders
 If parties reach agreement on the order they wish the court to make, they can apply for an
order to be made by consent without the need for attendance by the parties.
 Must ensure that they provide the court with any material it needs to be satisfied that it is
appropriate to make the order, and usually a letter will suffice
 Orders made without notice
 PD 23A para 3 may be done in the following circumstances:
 (a) where there is exceptional urgency;
 (b) where the overriding objective is best furthered by doing so;
 (c) by consent of all parties;
 (d) with the permission of court;
 (e) date for hearing fixed and party wishes to make application at that hearing but he
does not have sufficient time to serve an application notice - should inform the other
party and court of intended application and make the application orally at the hearing;
 (f ) where a court order, Rule or Practice Direction permits.
 Copy of order must be served on respondent with copy of application notice and evidence.
 Order must contain statement of the right of the respondent to make an application to set
aside or vary the order.
 Respondent may apply to set aside/vary the order within 7 days of service of the order.
 Telephone hearings and video conferencing
 ‘telephone conference enabled courts’.
 PD 23A, para 6.2,
  all allocation hearings,
 listing hearings,
 interim applications,
 case management conferences and
 pre-trial reviews
 with a time estimate of less than one hour will be conducted by telephone.
 Exceptions are
 any hearing of an application made without notice to the other party, or
 where all the parties are unrepresented, or
 where more than four parties wish to make representations at the hearing.
 Applicant’s legal representative must file and serve a case summary and draft order no later
than 4pm 2 days before telephone hearing if the claim has been allocated to the multi-track.
 Use video conferencing facilities, should apply to the master or district judge for directions.
 Preparing supporting evidence
 Who should make the statement?
 person best able to address the relevant points from personal knowledge.
 What needs to be included?
 List the important points to be brought to the court’s attention.
 Include all the relevant detailed evidence relied on and anticipate your opponent’s case.
 How should the statement appear?
 Divide up the important points into numbered paragraphs - chronological order.
 What about hearsay evidence?
 indicate which contents derive from maker’s own knowledge and which are from a third
party or form the basis of his own belief.
 source of any matters of information or belief must also be given.
 What is the key to possible success?
 Focus on detail and exhibit any relevant supporting documents.
 If any of the facts arise from or are supported by documents, these should be exhibited.
 Should points of law be included?
 Legal arguments are best left to the advocates at the hearing.
 However, your client may have to express a legal opinion.
 Costs of applying for or opposing an application
 Collecting evidence, interviewing witnesses, conducting a site visit, negotiating, etc.
 Notice of application and supporting witness statement.
 A court fee is payable for making the application.
 Respondent will usually prepare a witness statement in response.
 Travelling to and from the court, and the advocate dealing with the application.
 ‘Pay as you go’ litigation
 End of interim application, judge may decide one party should pay the other party’s costs.
 Type of costs order depend on nature of application, usually reflect conduct of the parties.
 Summary assessment
 If order for costs in favour of one parties then summary assessment of costs there and then.
 Payable within 14 days, unless the court orders otherwise (r 44.8).
 not less than 24 hours prior to the hearing, to file and serve a statement of costs. Form N260
 If party fail to comply, no reasonable excuse, taken into account deciding what costs order.
  To help the judge carry out a summary assessment, he will take into account the guideline
rates for solicitors and counsel.
 Fixed costs
 Part 45 sets out the occasions on which fixed costs may be granted and specifies the amount
awarded to the receiving party.
 Where fixed costs are granted there is no need for a summary assessment.
 Costs-capping order (r 44.18)
 The problem to be addressed
 In exceptional circumstances the court may make an order capping the amount of costs
recoverable by a party that are incurred after the date of the order.
 Making the application
 Any party may apply for a costs-capping order.
 Application should be made ASAP, preferably before or at first case management
conference.
 Evidence in support should state if the costs-capping order is in respect of the whole of
the litigation or a particular issue which is ordered to be tried separately, and why.
 It should be accompanied by an estimate of costs.
 The court will normally direct that all other parties file a similar estimate.
 Grounds for making an order
 r 44.18(5) - the court can make a costs-capping order against all or any of the parties, if:
 (a) it is in the interests of justice to do so;
 (b) substantial risk that without it costs will be disproportionately incurred; and
 (c) it is not satisfied that the risk in sub-para (b) can be adequately controlled by –
 (i) case management directions or orders made under Part 3, and
 (ii) detailed assessment of costs. So where the concerns are that the other side’s
hourly charges and use of leading counsel are excessive, as in Peacock v MGN
Ltd [2009] EWHC 769, the order will be refused on the basis that a costs judge
can deal with these issues on a detailed assessment.
 In considering whether to exercise its discretion under the rule, the court will consider
all the circumstances of the case, including:
 (a) whether there is a substantial imbalance between the financial position of the
parties;
 (b) whether the costs of determining the amount of the cap are likely to be
proportionate to the overall costs of the litigation;
 (c) the stage which the proceedings have reached; and
 (d) the costs which have been incurred to date and the future costs.
 Effect of order
 party can apply to vary it.
 No variation will be made by the court unless there has been a material and substantial
change of circumstances since the date the order was made, or there is some other
compelling reason why a variation should be made.
 Conditional fee agreements and the summary assessment of interim application costs
 para 14 PD 44. If party has a CFA this will not prevent the costs of the interim application
from being summarily assessed if the court has awarded costs in favour of a party.
 Receiving party CFA funded
  If receiving party CFA funded, court cannot order payment unless satisfied that receiving
party is immediately liable to his solicitor for costs of application under terms of CFA.
 If receiving party is on CFA, court’s summary assessment can deal only with base costs.
 The question of if paying party should be responsible for success fee on those costs (and
if so to what extent) will not be considered by the court until the conclusion of the case.
 Paying party CFA funded
 Party who is CFA funded may not be in a position to pay interim costs if ordered.
 Court may decide to defer payment of the interim costs until the end of the proceedings.
 The court should take into account the unfairness of this on the receiving party.
 APPEALS AGAINST AN INTERIM ORDER
 The procedure for appeals is set out in Part 52.
 An appeal from a decision of a district judge in a county court is made to a circuit judge, and
from a master or district judge in the High Court to a High Court judge.
 Permission to appeal is required and will be granted only if the appeal has a real prospect of
success, or there is some other compelling reason for the appeal to be heard (r 52.3(6)).
 Permission may be sought either at the original hearing, or from the appeal court within 14
days of the original decision.
 If permission is sought at the original hearing but refused, a further application for
permission may be made to the appeal judge.
 The appeal hearing will usually be limited to a review of the district judge’s or master’s
original decision and no new evidence will be admitted unless the court orders otherwise
(r52.11).
 The appeal will be allowed if the original decision was either wrong or unjust because of a
serious procedural or other irregularity.
 If the appeal is allowed, the appeal judge may make a variety of orders (eg, setting aside or
varying the original order and ordering a rehearing).


 INTERIM REMEDIES (PART 25)

  The court has wide powers to grant parties to a claim, or to a proposed claim, various
interim remedies. These are set out in r 25.1:

(1) The court may grant the following interim remedies—

(a) an interim injunction;

(b) an interim declaration;

(c) an order—

(i) for the detention, custody or preservation of relevant property;

(ii) for the inspection of relevant property;

(iii) for the taking of a sample of relevant property;

(iv) for the carrying out of an experiment on or with relevant property;

(v) for the sale of relevant property which is of a perishable nature or which for any other
good reason it is desirable to sell quickly; and

(vi) for the payment of income from relevant property until a claim is decided;

(d) an order authorising a person to enter any land or building in the possession of a party to the
proceedings for the purposes of carrying out an order under sub-paragraph (c);

(e) an order under section 4 of the Torts (Interference with Goods) Act 1977 to deliver up goods;

(f ) an order (referred to as a ‘freezing injunction’)—

(i) restraining a party from removing from the jurisdiction assets located there; or

(ii) restraining a party from dealing with any assets whether located within the jurisdiction or
not;

(g) an order directing a party to provide information about the location of relevant property or assets or
to provide information about relevant property or assets which are or may be the subject of an
application for a freezing injunction;

(h) an order (referred to as a ‘search order’) under section 7 of the Civil Procedure Act 1997 (order
requiring a party to admit another party to premises for the purpose of preserving evidence etc);

(i) an order under section 33 of the Supreme Court Act 1981 or section 52 of the County Courts Act
1984 (order for disclosure of documents or inspection of property before a claim has been made);

(j) an order under section 34 of the Supreme Court Act 1981 or section 53 of the County Courts Act
1984 (order in certain proceedings for disclosure of documents or inspection of property against a non-
party);

(k) an order (referred to as an order for interim payment) under rule 25.6 for payment by a defendant
on account of any damages, debt or other sum(except costs) which the court may hold the defendant
liable to pay;

(l) an order for a specified fund to be paid into court or otherwise secured, where there is a dispute over
a party’s right to the fund;

(m) an order permitting a party seeking to recover personal property to pay money into court pending
the outcome of the proceedings and directing that, if he does so, the property shall be given up to him;

(n) an order directing a party to prepare and file accounts relating to the dispute; and
 (o) an order directing any account to be taken or inquiry to be made by the court.

 An interim remedy may be obtained before proceedings are issued, during proceedings, or
even after judgment has been given.
 A court may grant a remedy before a claim is issued only if the matter is urgent.
 Defendant may not apply for one of the orders listed in r 25.1 until he has filed an
acknowledgement of service or defence.
 Interim remedy on an application made without notice if it appears to the court that there
are good reasons for not giving notice e.g. freezing injunctions and search orders.
 Freezing injunction restrains a party from removing his assets from the jurisdiction
 Search order compels the respondent to allow his premises to be searched by the applicant.
 such applications must be made to a High Court judge and the evidence in support of these
applications must be by way of affidavit.
 Evidence in support of other applications for interim remedies is by the usual methods:
 (a) witness statements with statement of truth;
 (b) the application notice with statement of truth;
 (c) the statement(s) of case with statement of truth.

 INTERIM PAYMENTS
 Type of interim remedy - interim payment (r 25.1(1)(k)).
 It is an advance payment on account of any damages, debt or other sum (excluding costs).
 Before application, claimant should negotiate with defendant for voluntary interim payment
 If not forthcoming, then the application should be made as soon as possible.
 Claimant not seek interim payment until after time for acknowledging service has expired.
 The claimant may make more than one application.
 Procedure
 Application must be supported by evidence and served 14 days before the hearing date.
 The evidence required set out in para 2.1 of PD 25B - evidence must deal with:
 (a) the amount of the interim payment being sought;
 (b) the items or matters in respect of which the interim payment is sought;
 (c) the likely amount of the final judgment;
 (d) the reasons for believing that the conditions for an interim payment are satisfied;
 (e) any other relevant matters.
 If respondent rely on evidence - should be served at least 7 days before the hearing.
 If applicant use evidence in reply to respondent’s evidence - should be served 3 days
before hearing.
 Grounds for making the order
 By r 25.7(1), The grounds for the court making an interim payment are as follows:

(a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of
money to the claimant;

(b) 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;

(c) 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 from whom he is seeking an order for an interim
payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim;

(d) the following conditions are satisfied—

(i) the claimant is seeking an order for possession of land (whether or not any other order is also
sought), and
 (ii) the court is satisfied that, if the case went to trial, the defendant would be held liable (even if the
claim for possession fails) to pay the claimant a sum of money for the defendant’s occupation and use
of the land while the claim for possession was pending;

or

(e) in a claim in which there are two or more defendants and the order is sought against any one or more of those
defendants, the following conditions are satisfied—

(i) 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 at least one of the defendants (but the court
cannot determine which), and

(ii) all the defendants are either—

(a) a defendant that is insured in respect of the claim;

(b) a defendant whose liability will be met by an insurer under s 151 of the Road Traffic Act 1988,
or an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau
where it is acting itself, or

(c) a defendant that is a public body

 If delay in assessment of damages unlikely to be substantial, court reluctant to exercise

its discretion to make an order unless claimant has some special reason for requiring it.
 A respondent cannot contest the application on the grounds of poverty.
 If respondent wishes court to take into account his ability to pay when deciding whether
to exercise its discretion, details of respondent’s financial position should be disclosed in
his evidence in reply to the application.
