The Bar Training Course

Full Time 2022 - 2023

College of Business and Law

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CIVIL LITIGATION AND EVIDENCE

SGS 7

Interim Applications (Cont.d) and Interim Injunctions

ANSWERS TO MCQ/SBA

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TASK 3-MULTIPLE CHOICE QUESTIONS

1. Which one of the following statements about applications made on notice is wrong?

[A] Applications on notice will normally be made by filing an application notice and must be
supported with written evidence in the form of a witness statement.

[B] Service of an application made on notice will normally be served on the respondent at
least 3 clear days before the hearing date.

[C] When making an application on notice, except in the simplest of cases, a draft of the
order sought should be provided to the court.

[D] The court may decide to deal with an on-notice application without a hearing if the
parties agree or if the court considers it appropriate.

A is correct as it is the only statement that is wrong. A is wrong as although it is correct to

state that the application notice should normally be supported with written evidence, it is
wrong to state that that written evidence must be in the form of a witness statement. The
written evidence may be in the form of a witness statement, or the applicant may rely on
the statements of case themselves, or the applicant may fill in the written evidence in the
application form itself and sign it with a statement of truth or the applicant may choose to
put the evidence in the form of an affidavit.

B is correct and is set out at CPR 23.7(1). Note the word “normally” you will already have
come across an application to the Court (summary judgment) where there is a longer time
period for notice to be given before a hearing. You will also deal with interim payments in a
later SGS and again there is a longer notice period to be given to the respondent in that
application too. Remember however – the important point that applications on notice must
be served as soon as practicable after it is filed and in any event at least 3 days before
the hearing of the application (CPR 23.7(1))

C is correct and is reflected in paragraph 12 of PD 23 A. Think also of your Crabtree and

Rustic and other briefs used in civil advocacy where you will have seen a draft of the order
on the court file (e.g. infant settlement approval in SGS 1 in civil advocacy).

D is correct as CPR 23.8 provides that the court may deal with an interim application without
a hearing if the parties agree that the court could dispose of the application without a
hearing (take a look at the application notices in Crabtree and also in your civil advocacy
booklets and you will see that the applicant can give a view on whether a hearing is allowed
and if so for how long) or if the court does not consider that a hearing is appropriate.
Remember from SGS 1 that the court when actively managing cases in accordance with the
overriding objective is to consider whether cases can be dealt with without the parties
attending court (by using technology- CPR r 1.4(2)(j) and (k)). For example, the matter
might be capable of being dealt with by way of telephone hearing.

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2. Sofas R Us issued proceedings against Furniture For You to recover damages for the
unsatisfactory quality of the sofas manufactured and delivered by Furniture For You.
Furniture For You acknowledged service and filed a defence denying liability. Furniture For
You then wrote to Sofas R Us seeking an appointment to inspect the sofas which it had
manufactured and delivered and which Sofas R Us said were not of satisfactory quality

Sofas R Us refused on the basis that they had no time to supervise such a visit during the
Christmas period as they were too busy.

Furniture For You is anxious to resolve the matter as a matter of urgency and, to enable it to
do so, wants to make an application for an order to inspect the damaged sofas which remain
at Sofas R Us warehouse.

Furniture For You asks for your advice as to the procedure to be followed when making the
application.

Which of the following is the correct advice to give?

[A] Furniture For You should file an application notice stating the precise order sought and
explaining why it is seeking the order. The notice should be served on Sofas R Us at least 14
days before the hearing together with written evidence explaining the grounds for the
application.

[B] Furniture For You should file an application notice stating the precise order sought.
It can make an application without notice as they consider the matter to be urgent or it is
otherwise desirable to do so in view of Sofas R Us refusal to consent to the request for
inspection. During the application Furniture For You will owe a duty of full and frank
disclosure, including disclosure of all matters adverse to it.

[C] Furniture For You should file an application notice stating the precise order sought.
It does not need to serve a copy of the application on Sofas R Us as Furniture For You
wishes to have the matter dealt with urgently. Once the court order has been made, it must
serve a copy of the application notice, any evidence in support and the court order on Sofas
R Us.

[D] Furniture For You should file an application notice stating the precise order sought
and explaining why it is seeking the order. The notice should be served on Sofas R Us as
soon as practicable after it is filed and at least 3 days before the hearing date together with
any written evidence in support and a draft order.

D is the correct answer. Furniture For You should file an application notice stating the precise
order sought and explaining why it is seeking the order. The notice should be served on
Sofas R Us as soon as practicable after it is filed and at least 3 days before the hearing date
together with any written evidence in support and a draft order. This is the best answer. See
r.23.3(1), r. 23.4(1), 23.6 and r.23.7.

A is wrong as it refers to a period of 14 days to serve the application which whilst

appropriate timings for applications for summary judgment (dealt with in an earlier SGS)

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and interim payments (to be dealt with in a later SGS) is not appropriate for an application
for inspection.

In respect of B, whilst it is correct that a duty of full and frank disclosure is owed where an
application is made without notice (see White Book 2022 at 25.3.5) but the test set out at B
for making an application without notice (namely that the matter is urgent or it is otherwise
desirable to do so in the interests of justice is not correct (that test applies only where an
interim remedy is sought before a claim form has been issued-which is not the case
here (see CPR r. 25.2(2)(b)) .The refusal by Sofas R Us to allow inspection does not mean
that this is a case of exceptional urgency which justifies an application being made without
notice. The fact pattern referring to Furniture For You being anxious to resolve the matter
urgently is a bit of a red herring in this respect

In respect of C the test for making an application without serving an application notice is
correct (see CPR r 23.4(2) and PD 23A, para 3(1)) as is the second part of the answer (see
CPR r.23.9), but this is not the correct answer as there is nothing on the facts which
indicates urgency. Furniture For You’s desire to resolve matters urgently would not satisfy
the test.

3. Philip works as a freelance DJ at nightclubs throughout the North of England. At the time
of the accident, he lived in Bristol. During a DJ set in Newcastle, the equipment which he
had hired from Endgate Entertainment (EE) (including bubble machines and flashing lights)
caught fire. Philip suffered personal injuries and damage to his reputation. Philip
commenced a claim against EE in the county court at Bristol. The claim was subsequently
transferred to the county court at Kent at the request of EE (as their headquarters were
based there). Philip then moved to Nottingham. Both parties and the District Judge who has
been managing the case, agree that the trial should take place in the county court at
Newcastle, for the convenience of a number of important factual and expert witnesses who
reside there. A date for trial has not been fixed.

In preparing for trial, Philip decides that he wants to make an application to the court for an
order for inspection of some goods relevant to the claim (an interim remedy to which Phillip
is potentially entitled pursuant to CPR25.2(c)(iii)).

Please advise Philip as to where to make this application.

[A]The county court at Bristol

[B]The county court at Kent

[C]The county court at Newcastle

[D] Any county court at Nottingham.

B is correct - the county court at Kent. Although the claim was commenced in Bristol (A) and
CPR 23.2 states that the general rule is that an application must be made to the court or
hearing centre where it was started, we are told that it has been transferred out to Kent and
CPR 23.2(2) says that it should therefore be heard in the court to which it has been
transferred unless there is a good reason not to do so.

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We are told that the court has not yet fixed a date for trial therefore Philip should not make
his application to C – Newcastle as CPR 23.2(3) does not apply. The fact that Philip may
have moved to Nottingham is not relevant as there is no suggestion that the matter is going
to be transferred to a hearing centre there.

4. Yaavar has brought a claim in trespass against Scott and has made an interim application
to prevent Scott from trespassing across his land. Scott has defended the application and in
his written evidence has stated that pursuant to a gentleman’s agreement, Yaavar invited
him to cross the land 2 years ago, kindly providing Scott with a short cut on this way to
work.

Yaavar claims that this is untrue, and that Scott’s evidence will not hold up under cross
examination.

What is the most appropriate advice to give to Yaavar in the circumstances?

[A] Yaavar will need to wait until trial for Scott to be cross examined as oral evidence is not
permissible at interim applications.

[B] Yaavar can apply to the court for an order allowing him to cross examine Scott.

[C] If Yaavar is granted permission to cross-examine Scott, and Scott fails to attend, Scott’s
written evidence can still be relied upon, and so it would not be proportionate to ask that
Scott attends to give oral evidence at an interim hearing.

[D] Yaavar can ask for permission to cross-examine Scott but must do so within 7 days of
deemed service of Scott’s written evidence.

B is the correct answer. See CPR 32.7. Whilst it is rare for the court to allow oral evidence at
interim hearings, it is not prohibited, and so A is wrong. There is no notice period mentioned
in the rule and so D is wrong, and if permission were granted for Scott to give oral evidence
at the hearing and he failed to attend, then Scott’s evidence could not be used, unless the
court gave permission (CPR 32.7(2)) and so C is wrong.

(note to tutors-CPR 32.7 is on the syllabus and so needs to be tested. I think that it works
here as students need to be aware that whilst, for the most part, we deal with written
evidence in interim application, there is also the possibility for oral evidence to be given. I
noted that Lucilla noted that the question did not sit easily in the session, but I have moved
it from unseen to seen and so hopefully this works better!)

5.Shirley has commenced proceedings in the County Court against Sally, seeking damages
to rebuild the ancient stone wall which has collapsed because of Sally’s digging of
foundations next to the boundary between their properties. The claim form does not include
a claim for an injunction. The digging of the foundations has stopped for 7 days as the
builders have taken a well-earned holiday having been working non-stop for the last month.
Shirley wants to apply to the court for an order to prevent Sally from continuing with the

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digging of the foundations and other noisy building work on Saturdays, Sundays and before
9 am and after 6pm on weekdays.

Is Shirley required to amend her claim form, and is she obliged to give Sally notice of the
application for an interim injunction?

[A] Shirley does not need to amend the claim form to include a claim for an injunction
but should apply for an interim injunction with notice.

[B] Shirley should amend the claim form to include a claim for an injunction and then
apply for an interim injunction without notice.

[C] Shirley does not need to amend the claim form to include a claim for an injunction
but should apply for an interim injunction without notice.

[D] Shirley should amend the claim form to include a claim for an injunction and then
apply for an interim injunction with notice.

A is the correct answer. Shirley does not need to amend the claim form to include
a claim for an injunction but should apply for an interim injunction with notice.

The claim form should include a claim for an injunction where a perpetual injunction is
sought as a final order. That is not the case here. An interim injunction can be sought
whether or not a claim for an injunction is made in the claim form. See CPR r.25.1 (4) and
WB 2022 para 25.1.9.

From the facts, it would appear that the matter is not urgent (we are told that work has
ceased for 7 days). The application should therefore be made on notice to Sally (with the
application notice and evidence in support being served on him as soon as practicable after
issue and in any event not less than 3 days before the hearing – see CPR r.23.7(1)).

An application should be made without notice only if it appears to the court that there is a
good reason for not giving notice (see CPR r. 25.3(1)). There must be some urgency which
means that there is literally no time to give notice before the injunction is required to
prevent the threatened wrongful act (see commentary at 25.3.2), and that does not appear
to be the case on these facts.

B is wrong because there is no need to amend claim form before making the application for
an interim injunction. See CPR r.25.1(4) and is also wrong because it states the application
should be without notice (see CPR r.25.3(1)) C is wrong because it states the application
should be made without notice. D is wrong because although it correctly states the
application should be made on notice, it is wrong in stating the claim form needs to be
amended to include a claim for an injunction.

6. Your instructing solicitors seek your advice on behalf of their client, Risible Bank about the
timing for an interim prohibitory injunction against Rummidge Printers seeking to restrain it

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from operating its machinery during Risible Bank’s working hours. Rummidge Printers moved
into their new premises (adjoining Risible Bank) 6 days ago. The noise is horrendous and is
preventing the Bank’s employees from performing their duties. They fear there will lose
clients as a result.

The solicitors seek your advice on whether they should wait for the noise abatement officer
to come from the council before making any such application; he has said that his first
available appointment is in 2 months.

What is the best advice to give in the circumstances?

[A] The Bank should not wait a further 2 months before making the application as the delay
in making the application may go against them, when the court considers the balance of
convenience test and whether the status quo should be maintained.

[B] It does not make any difference whether Risible Bank waits to hear from the noise
abatement officer or goes ahead and makes the application for an interim injunction now.

[C] It would be appropriate to wait until the noise abatement officer has come; this would
be just and proportionate in accordance with the overriding objective.

[D] The Bank should wait a further 2 months before making the application as the delay in
making the application would be minimal in the circumstance and so would be disregarded
when considering the status quo.

The best advice to give in the circumstances is A. If the bank waits for 2 months before
making the application the delay will go against them when the court considers the balance
of convenience and then the status quo – as any delay would favour the printers. On the
facts as they stand currently the status quo favours the bank as the printers moved in only 6
days ago, and minimal delays are ignored. See Volume 2 – paragraphs 15- 10 and 15 -15 of
the White Book (pages 2894 – 2895).

7.Retaining the facts of MCQ 6 above. Imagine that instead of the court granting an interim
injunction, prior to the hearing for the interim injunction, Rummidge Printers offers Risible
Bank plc a voluntary undertaking in lieu of the injunction, that it will not use its machinery
for printing within the banks working hours of 9 am to 5 pm.

In fact, two week later, Rummidge Printers changes its mind (the workforce is not prepared
to work overnight) and states that it wishes to alter the terms of its undertaking and is
prepared to alter its working hours to commence at 6 am but will continue with its printing
until midday each day.

Risible Bank is very concerned about this and seeks your advice as to whether the court will
allow the variation of the terms of the original undertaking given by Rummidge Printers.

What is the correct advice to Risible Bank as to whether the court can vary the terms of the
original undertaking given by Rummidge Printers?

[A] The court has no power to vary the undertaking. To challenge the terms of the
undertaking, Risible Bank will have to appeal against it. To succeed on the appeal,

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the Rummidge Printers must show that the undertaking was wrong in law or in
principle.

[B] The court has no power to vary the undertaking. Rummidge Printers must apply to be
released from the undertaking and offer a new undertaking in its place. Whether the
court will accept the new undertaking will depend on whether Rummidge Printers
can demonstrate that there has been a significant change of circumstances.

[C] The court has the power to vary the undertaking provided that Rummidge Printers
can demonstrate that there has been a significant change in circumstances.

[D] The court has the power to vary the undertaking should it think it appropriate to do
so, in the interests of justice.

B is the correct answer. See the case of Birch referred to in D below, court has no power
to vary the terms of an undertaking. The correct procedure is for Rummidge Printers to
apply for release from the undertaking and to offer a further undertaking in different terms.
The court can only exercise its discretion to release the applicant from the original
undertaking and accept the further undertaking if there has been a significant change of
circumstances, see paragraph 2 of WB 2022 at 25.1.14.1.

A is wrong. See WB 2022 Vol 1 at 25.1.14.2 “In the absence of extraordinary circumstances,
a claimant who has given an undertaking… is not normally entitled to pursue an appeal
against the undertaking.
C is wrong for the same reason set out in D.
D is wrong. See Birch v Birch [2017] at WB 2022 Vol 1 at 25.1.14.2, “the Supreme Court
clarified that a court has no power to impose any variation to the terms of a voluntary
promise”. Again, at WB 2022 at 25.1.14.1 “an application to vary an undertaking would be
wholly wrong in form”.

8. Biggens Limited (“Biggens”) brings a claim against Spottie Limited (“Spottie”) for
damages and a final injunction. Biggens applies for an interim injunction.

Spottie resists the interim injunction on the basis that Biggens cannot offer a credible
undertaking in damages. The loss that Spottie is likely to suffer if the injunction is granted
unjustifiably would be approximately £250,000.

Biggens only has about £2,500 worth of assets listed in its accounts. Its main asset is said to
be its right to bring the claim against Spottie.

Marius, Biggens’s sole director and shareholder, has a property in the joint name of him and
his sister, Mary. Marius lives in a rental property worth £ 2m and has a property which is
registered in his sole name worth £1 m (“his properties”).

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Biggens is prepared to offer an undertaking in damages, but Marius is unwilling to provide

security personally because he states that the reason that he incorporated the company was
to separate his business from his personal assets.

Which of the following is the approach that the court is most likely to take in respect of the
injunction and why?

The court is most likely to:

[A] refuse the injunction because Marius cannot offer a credible undertaking in damages
as his properties cannot be taken into account.

[B] refuse the injunction because Biggens cannot offer a credible undertaking in
damages.

[C] grant the injunction because refusing it would stifle a genuine claim.

[D] grant the injunction because Biggens is willing to offer an undertaking in damages to
the greatest extent that it can.

B is the most likely approach that the court will take (see JSC Mezhdunarodniy
Promyshlenniy Bank v. Pugachev [2015] E. W. C. A. Civ. 139, cited at last paragraph of 15-
30 of the White Book, Volume 2, page 2905. If an applicant for an interim injunction says
that they do not wish to or are not in a position to give an unlimited cross-undertaking in
damages, the burden is on them to show that external funds are not available and why they
should not be able to provide a cross undertaking for a lesser amount. A is not the best
answer as it is not Marius who is the party seeking the injunction, it is Biggens and,
Marius’s properties could be considered as an external source to support the undertakings.
Read also 15 – 27 on undertakings in injunctions generally.

9. You act for WildLife Wonders Limited (“WW”) who has commenced proceedings against
Benny’s Builders Limited Limited (“Benny’s Builders”). A dispute arose when Benny’s Builders
began to build a number of Surf Shacks on land to the side of a pathway to the beach at
ZolPeath. WW claims to own the land on which the Surf Shacks were being built.

WW obtained an injunction to prevent the continuation of the building, but at trial in the
High Court, the Judge decided that WW had failed to prove that it owned the land and
discharged the interim injunction. WW has now instructed you to appeal.

The Court of Appeal has granted permission to appeal against the decision of the High Court
Judge. The appeal will be heard in 6 months’ time.

Benny’s Builders wrote to WW yesterday, indicating that as the High Court Judge found in
its favour, it intends to continue with its Surf Shack development, which should be
completed within 4 months.

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WW seeks advice on what steps, if any, can be taken to prevent the development
proceeding before the appeal is heard in 6 months time.

What is the best advice to give to WW about what steps, if any, can be taken to prevent
Benny’s Builders from continuing with the development, pending the appeal?

[A] WW should make an application to the Court of Appeal that the appeal hearing
should be brought forward and should make clear in its application notice that it will
seek a permanent injunction against Benny’s Builders in the event that the appeal
succeeds.

[B] WW should immediately apply to the Court of Appeal for an interim injunction
preventing Benny’s Builders from proceeding with the development until the appeal
has been determined.

[C] WW cannot prevent the development proceeding because the Court of Appeal has
no jurisdiction to grant interim relief pending the hearing of an appeal.

[D] WW cannot prevent the development proceeding before the appeal because the
interim injunction was discharged by the High Court at the trial.

B is the best answer. The Court of Appeal can grant an interim injunction pending the
appeal. The granting of the injunction would have the effect of preventing the development
from proceeding until the appeal had been determined. See Vol 2 15-9.1, p 2894. “An
unsuccessful claimant may be granted interim protection if they are seeking to restrain some
irreparable harm pending appeal, notwithstanding that they have been unsuccessful in
asserting their right at trial.” A is not the best answer. While this is a course of action
available to WW, it does not prevent Benny’s Builders from progressing with the building of
the Surf Shacks. Further there is no guarantee that the appeal could be brought forward,
which might mean that if no injunction were obtained, the shacks might be completed
before the appeal is heard! C is not the best answer and is wrong for the reasons given in A.
Further, CPR 52.20 makes clear that the appeal court has all the powers of the lower court.
D is not the best answer and is wrong because of the answer given at A.

UNSEEN MCQS

1. You represent Helena Chowdhury, an intensive care nurse. She has been living peacefully
in Combe Grove Apartments for several years. 8 weeks ago, the neighbouring and attached
property was let to Adrian Thompson. He has recently been made bankrupt and has no
assets. He has started giving lessons as a drum teacher to try and make a living. He knows
that it is in breach of a covenant of the property to operate a business out of it, but has said
that once able to, he will hire a studio in a more appropriate location.

Due to the nature of Mrs Chowdhury’s job, she often works shifts and needs to sleep in the
day. She is unable to sleep properly with the constant drumming noise coming from next
door. When she has finally fallen asleep, she has woken late. She has been late for work 3
times and fallen asleep at work on 2 occasions. She is afraid that she will lose her job or
endanger a patient due to sleep deprivation. She has inherited money from her parents

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recently. It is not the money that is the issue. She loves and values her job. She has tried to
reason with Adrian but without success.

Helena wants to seek an interim prohibitory injunction to prevent Adrian from continuing to
give drumming lessons from his home.

What is the most likely approach that the court would take when considering whether to
grant the order sought by Helena?

[A] A court would not grant an interim injunction in these circumstances as to do so would
cause irreparable damage to Adrian by removing his livelihood.

[B] A court would consider granting an interim injunction against Adrian but would need to
be persuaded that there was a serious question to be tried on the merits and would seek an
undertaking in damages from Helena in the event that the injunction was wrongly granted.

[C] A court would consider granting an interim injunction against Adrian but would need to
be persuaded that Helena has a real prospect of succeeding on her underlying claim, would
seek an undertaking in damages from Helena in the event that the injunction was wrongly
granted and would also be obliged to consider the state of affairs existing immediately
before the issue of the claim form.

[D] A court would not grant an interim injunction in these circumstances as damages would
be an adequate remedy for Helena were she to lose her job, and if damages are an
adequate remedy for an applicant, an interim injunction is unlikely to be granted.

B is the most likely approach that the court will take. When considering the merits of the
case in an interim application, the evidence will be incomplete and will be written and
untested by oral cross examination. The court has no way of resolving conflicts on the
written evidence but does need to be satisfied that the claim is not “frivolous or vexatious”,
namely that there is a serious question to be tried (Lord Diplock in American Cyanamid –
and see 15-8 of Vol 2 of the WB. The court will then go on to consider the balance of
convenience and adequacy of damages. Damages cannot be an adequate remedy for
Helena – not only would they be difficult to quantify (loss of job and reputation) but we are
also told that Adrian is bankrupt and has no assets, and so on the facts it is clear that he
could not satisfy them in any event (see 15-10 of Vol 2 of the WB). Therefore, D is not the
most likely approach the court would take on the facts of this case.

A is also not the most likely approach that the court would take, as it fails to consider the
possible undertaking which might be required by the applicant to prevent or reduce the risk
of irreparable harm happening to the respondent.

The court would then consider whether damages would be an adequate remedy for Adrian;
this is unclear on the facts, but there is a suggestion that Helena has independent income
and so would be able to pay. It would be a matter for Adrian to show the damages that he
had been suffered by not being able to continue with the drum lessons. Both B and C

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contain this element of the test and so we need to work out why it is that B is the most
likely approach from here.

The fact that C refers to the court needing to be persuaded that Helena would have a “real
prospect of success” does not make this approach wrong, as, when expounding the
principles of the test in American Cyanamid, Lord Diplock said that in addressing the
threshold test, it is sufficient if the court asks itself “is the applicant’s action “not frivolous or
vexatious”? Is there a “serious question to be tried”. Is there “a real prospect that he will
succeed in his claim for a permanent injunction at trial” (15-8 Vol 2).

The fact that C refers to the court being under an “obligation” i.e. it “must “consider the
status quo shows that this is not the most likely approach to be taken by the court.

It is correct that this is one of the factors that the court may consider but remember that
the American Cyanamid Guidelines are just that – guidelines and not a statutory rule. The
status quo is also considered when all the other elements appear to be finely balanced. It is
suggested that on these facts, they are not; Adrian has admitted that he is in breach of his
tenancy agreement and cannot give an undertaking to Helena.

B is therefore the most likely approach that the court will take.

2. In respect of ordinary interim injunctions, which one of the following statements is

correct?

[A] An application for an interim injunction may not be made if a claim has not yet been
commenced.

[B] An interim injunction may not be granted where damages would be an adequate remedy
for the applicant.

[C] An interim injunction may not be granted unless there has been a claim for a final
remedy in the same terms.

[D] An interim injunction may not be granted in respect of a claim proceeding on the small
claims track.

The correct answer is B: an injunction is an equitable remedy; pursuant to the case of

American Cyanamid Co. v Ethicon Ltd. [1975] AC 396, where damages would be an
adequate remedy for the applicant an injunction should not normally be granted. A is wrong
because an application for an interim remedy may be made before proceedings have been
started: see CPR r. 25.2(1); C is wrong because CPR r. 25.1(4) provides that the court may
grant an interim remedy whether or not there has been a claim for a final remedy of that
kind; D is wrong because an interim injunction may be granted in respect of a claim
proceeding on the small claims track: see CPR r. 27.2(1) (a)).

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