LPC: CIVIL LITIGATION CHAPTER 8

CIVIL LITIGATION

CHAPTER 8:

INTERIM APPLICATIONS Legal Practice Course

“For information only...”

The cases shaded grey in this chapter are examinable. Therefore you need
to learn the name of the case and the principle from the case. Any other
cases are for illustration purposes only.

All information contained in your chapter handouts is examinable. However

we will sometimes need to provide you with some background information
which is non-examinable and is provided for information only, in order to
put the topic into context. Such information is also likely to be relevant when
you get into practice. Where applicable, this is highlighted in the text; please
look out for the following symbol:

This chapter contains information which is relevant to a number of your Civil Litigation
SGSs. To enable you to prioritise your reading for each SGS, the chapter is divided into
four parts, as follows:

Part 1 Interim applications generally Required reading for SGSs 8 and 9

Part 2 Specific interim application: Required reading for SGSs 8 and 9

Security for costs

Part 3 Specific interim application: Required reading for SGS 8

Summary judgment

Part 4 Specific interim application: Required reading for SGS 9

Interim injunctions (interim
prohibitory injunctions and
freezing injunctions)

Each part of the chapter has a specific online lecture recording in respect of it located
on the Hub. Your SGS descriptions will also refer to the specific part or parts of
Chapter 8 which you should consider for the relevant SGS as referred to above. You

LAW SCHOOL 01/06/2022 12:51:00 PM/CK Page 1 of 13

CHAPTER 8 LPC: CIVIL LITIGATION

should be watching the recorded lecture while following the text in the chapter at the
same time.

Learning outcomes
After this chapter you should be able to:
1. understand the nature of interim applications and identify the
circumstances in which such applications are made;
2. understand the procedure for making interim applications;
3. understand the likely cost orders at an interim application;
4. understand the nature of a security for costs application;
5. understand the nature of a summary judgment application;
6. understand the nature of interim injunctions;
7. analyse the legal requirements and procedural steps necessary to obtain
an interim injunction; and
8. analyse the legal requirements and procedural steps necessary to obtain
a freezing injunction.

Where are we?

Claim form issued and served.

Particulars of claim also served.
Defendant may have acknowledged service or filed a defence (or both).
Can either party use any procedures at this stage to achieve an objective
or obtain a tactical advantage?

Page 2 of 13 01/06/2022 12:51:00 PM/CK LAW SCHOOL

LPC: CIVIL LITIGATION CHAPTER 8 PART 1

PART 1 – INTERIM APPLICATIONS GENERALLY

1. General

1.1 What is an interim application?

Interim applications are simply applications for orders or directions made to
the court, usually in the ‘interim’ period between the commencement of
proceedings (i.e. issue of the claim form) and trial. However, some ‘interim’
remedies can be applied for before the commencement of proceedings.

Interim applications are made to assist the parties in pursuing their cases and
can be made for a number of reasons.

All interim applications give rise to either directions or interim orders. An

interim order does not usually finally determine the proceedings (a summary
judgment application under CPR 24 is an exception), but is simply an order
made by the court before the matter is heard at trial.

There are numerous situations in which you may consider making an interim
application to court. Some examples include:
 extending the time period for taking a particular step in the proceedings;
 applying to amend your statement of case or requiring the other party to
provide further clarification on its statement of case;
 specific disclosure of a document; and
 permission to rely on expert evidence.

We concentrate on three specific interim remedies on this module – security

for costs, summary judgment and injunctions. Each of these will be dealt with
separately in parts 2, 3 and 4 of this chapter respectively.

1.2 Methods of applying

Interim applications are generally governed by CPR 23 but also by specific
CPRs in relation to the particular type of interim application the party is
making.

The application to court must usually be made ‘with notice’ to the other party.
However, in some circumstances, interim applications may be made ‘without
notice’ if permitted by a CPR, PD or court order (CPR 23.4(2)).

Without notice applications

A without notice application generally means an application to court made by

one party without informing the other party concerned.

Only one party goes to court – the other party is not heard. This is potentially
unfair, so is used in exceptional cases or for purely administrative matters.
Certain procedural safeguards (such as a duty to give full and fair disclosure
of relevant matters – discussed in part 4 of this chapter) are used to redress
this potential unfairness.

LAW SCHOOL 01/06/2022 12:51:00 PM/CK Page 3 of 13

CHAPTER 8 PART 1 LPC: CIVIL LITIGATION

The CPR state that such applications can only be made if there are good
reasons for not giving notice. The evidence in support of the application must
state why notice was not given.

Some examples of when a without notice application might be used are:

 when the matter is urgent (23A PD 3(1));
 when the object of the order would be defeated by providing notice, such
as an injunction or search order where providing notice would alert the
respondent of your intention before the application could be determined
by the court;
 where the other party is not yet on the court record (i.e. proceedings
have not yet been served on the defendant); and/or
 where there is insufficient time to provide formal notice as a hearing date
has already been fixed (23A PD 2.10).

After a without notice hearing, the respondent will receive a copy of the order
made by the court. The applicant must also serve the respondent with the
application notice and evidence (CPR 23.9) (see below) which must contain a
statement of his/her/its right to apply to the court to have the order set aside
(CPR 23.10).

With notice applications

This is an application to court made by one party who has informed the other
party concerned of the application before the matter is heard by giving formal
notice (i.e. sending the respondent a copy of the application notice and
evidence in advance – see below).

This is much more common. Both parties are able to attend the hearing and
evidence is given in written form.

Hearings normally take place in public but they should be private if necessary
to secure the proper administration of justice and if one or more of certain
factors are present – see CPR 39.2(3). The court ultimately decides whether it
is in the interests of justice for the hearing to be held in private.

On the court’s own initiative

The court can also make interim orders on its own initiative as part of its
general case management powers (CPR 3). The court may do this without a
hearing, when it comes to matters such as setting a timetable for the trial of a
case. In other cases, it is likely to invite parties to a hearing to argue why an
order should/should not be made. Where an order is made without a hearing,
it must contain a notice stating an application may be made by either party to
have the order set aside.

Page 4 of 13 01/06/2022 12:51:00 PM/CK LAW SCHOOL

LPC: CIVIL LITIGATION CHAPTER 8 PART 1

Telephone hearings and video conferencing

In accordance with the overriding objective, the court may order that a hearing
should take place by telephone or by video conference. Guidance on these
types of hearing is given in 23A PD 6 and 7.

1.3 Procedure for making an application

As without notice applications are rare, we will concentrate in this part of the
chapter on the more usual method of making applications: with notice. We will
deal with without notice applications in part 4 of this chapter when we consider
interim injunctions (normally made without notice).

1.3.1 When should you make an interim application?

You should apply as early as possible in the action, because of the overriding
objective and the need to deal with cases expeditiously. As soon as it
becomes apparent that it is necessary or desirable to make the application
(23A PD 2.7), you should apply. If possible, you should notify the court of any
applications you intend to make in the future on the directions questionnaire.

Most applications should be dealt with at the case management conference

(‘CMC’) or pre-trial review (‘PTR’) (if close to trial). If you are asking the court
for an unusual order, an application notice should be issued and served but
returnable on the date of the CMC.

Parties are under a specific obligation to ‘bunch’ their interim applications (23A
PD 2.8 and elsewhere). So if any hearing has been fixed for whatever reason,
it is up to the parties to issue any necessary applications to ensure that any
outstanding matters get dealt with at that single hearing, wherever possible. If
there is insufficient time, oral applications can be made (23A PD 2.10).

1.3.2 Where should you apply?

The application should be made to the court in which the main claim is
presently being dealt with or likely to be dealt with (in the case of pre-action
applications).

There is a power (CPR 2.7) for the court to deal with cases at any place the
court considers appropriate. It is possible, therefore, for applications to be
heard in a neighbouring court, if the court in which the claim is being dealt with
is very congested, or suffering long delays but this is quite rare.

LAW SCHOOL 01/06/2022 12:51:00 PM/CK Page 5 of 13

CHAPTER 8 PART 1 LPC: CIVIL LITIGATION

1.3.3 How do you apply?

The party wishing to make the application (‘the applicant’) prepares an

application notice and issues it at court. An application notice is a document
in which the applicant states his/her/its intention to seek a court order and is in
a standard form (N244). A court fee is payable to issue the application notice.

What should an application notice contain?

CPR 23.6 says that an application notice must state what order the
applicant is seeking and briefly why the applicant is seeking it.

23A PD 2.1 sets out various other requirements which are necessary.

The best way to understand what an application notice should contain is

to have it physically in front of you. The accompanying lecture shows
you what an application notice looks like and you will briefly consider an
application notice in SGS 8.

1.3.4 Supporting evidence

An application for an interim remedy must be supported by written evidence

setting out the facts justifying the relief sought unless the court orders
otherwise (CPR 25.3(2)).

Generally, any fact that needs to be proved at any hearing (other than trial)
should be proved by a witness’ written evidence (CPR 32.2(1)(b)).

The requirement for evidence in certain types of application is set out in the
relevant CPR and practice directions (these may also specify the form the
evidence may take). However, even in cases where evidence is not strictly
required, it is advisable to provide evidence (see 23A PD 9.1).

Form of evidence

Evidence may be given in three ways:

1. in Part C of the application notice;
2. by referring to the existing statements of case; or
3. by way of a witness statement or affidavit.

Evidence is usually given by way of witness statement (CPR 32.6(1)) but may
be given in Part C of the application notice if it is very short. Affidavits (sworn
statements) are required for certain applications (e.g. freezing injunctions
which are considered in part 4 of this chapter) but for most other applications,
witness statements will generally be used.

The evidence must be filed at court and served on the other party (‘the
respondent’) with the application notice.

Page 6 of 13 01/06/2022 12:51:00 PM/CK LAW SCHOOL

LPC: CIVIL LITIGATION CHAPTER 8 PART 1

If the evidence takes the form of a witness statement it must comply with the
formal rules set out in 32PD paragraphs 17-20. You will consider these rules
in detail in SGS.

Hearsay notices (see Chapter 6) are not required for interim hearings.

1.3.5 Other documents

Draft order

The applicant should also prepare a draft of the order sought, which should be
filed at court and served on the respondent in all but the simplest cases. If the
order is long then an electronic version should also be provided.

Bundle of documents

It is sometimes appropriate to lodge a bundle of documents at court containing

statements of case, evidence, correspondence, previous orders and
authorities. Bundles should be prepared in the High Court wherever more than
25 pages are involved. Parties should agree the content of the bundles and all
parties and the court must be provided with identical bundles.

Skeleton arguments

Skeleton arguments are usually required if the hearing is before a High Court
or county court judge (unless the matter is urgent or very simple), but not
usually for hearings before masters or district judges. Skeleton arguments are
normally prepared a day or so before the hearing. For an example skeleton
argument please refer to the hearing pack which is a supplemental handout to
this chapter.

1.4 Issue
The applicant takes or sends the application notice and the supporting
documentation to court, together with the court fee. The supporting
documentation will comprise a draft order and evidence, normally in the form
of a witness statement. A minimum of 3 copies will be required – one for the
court file, one for the party making the application and one for each defendant.

The court will then issue the application and either notify the parties of the
date and time of the hearing (the return date) or, if the parties have requested
that the application be determined without a hearing, the court will consider
this request (23A PD 2.3) and notify the parties whether it proposes to
consider the application without a hearing (23A PD 2.4 and 2.5).

1.5 Service
The application notice and supporting documentation must then be served on
the other side.

LAW SCHOOL 01/06/2022 12:51:00 PM/CK Page 7 of 13

CHAPTER 8 PART 1 LPC: CIVIL LITIGATION

The court may serve the application notice and supporting documentation. If
so, the applicant should keep a copy. In practice, the applicant's solicitors
usually serve the application notice for certainty and to retain control.

Service must generally be effected as soon as possible after the application is

issued and not less than three clear days before the application is to be heard.

However, please note that this is the general rule and some applications have
their own special time limits for filing evidence, e.g. summary judgment. This
is considered in more detail in part 3 of this chapter.

An application notice need not be served in certain limited circumstances (23A

PD 3).

If the application notice is not being served because there is insufficient time
to serve notice, parties should give informal notice to the other party (23A PD
4.2). It is then prudent to ask the court to use its powers of case management
under CPR 3 to ’abridge’ time for service at the hearing.

You will recall that the rules on how to calculate time under the CPR can be
found in CPR 2.8 and these were dealt with in detail in Chapter 2 and SGS 3.

1.6 Respondent’s evidence

The respondent may wish to file evidence in the form of a witness statement
or affidavit (which is a sworn witness statement) to rely on at the hearing. This
evidence must be filed and served as soon as possible (23A PD 9.4). The
court may have given a time limit for service when it issued the application
notice, in which case the evidence must be filed and served according to that
time limit.

1.7 Applicant’s evidence in reply

If the applicant wishes to bring further evidence against the respondent, this
must be filed and served as soon as possible (23A PD 9.5). Again, if the court
gave directions, it must be filed and served according to these directions.

1.8 At the hearing

Most interim applications are dealt with at a hearing.

It is, however, possible for matters to be dealt with in the absence of a hearing
if:
 the parties have agreed the terms of the order;
 the parties agree there should be no hearing; or
 the court does not consider a hearing appropriate (CPR 23.8).

Page 8 of 13 01/06/2022 12:51:00 PM/CK LAW SCHOOL

LPC: CIVIL LITIGATION CHAPTER 8 PART 1

Most interim applications are heard by a district judge or master, although

some (e.g. injunctions) can only be heard by judges.
Hearings are (strictly speaking) in public, even though most are conducted in
the chambers of the master or district judge.

You should take with you:

1. the application notice;
2. the evidence (usually witness statement and exhibits);
3. the draft order;
4. bundle of statements of case;
5. if required, skeleton arguments; and
6. any authorities on which you wish to rely.

You should then make your arguments based on the documentation. For
further detail regarding the conduct of interim hearings please see the hearing
pack which is a supplemental handout to this chapter.

The court can take the opportunity to review the conduct of the case and give
necessary directions.

Note that the court may require that the client attends a hearing (CPR 3.1(2)
(c)).

1.9 Costs orders at interim hearings

Once an interim hearing has taken place the court will need to consider who
should pay the costs of that hearing.

The court has an extremely wide discretion when ordering costs at an interim
hearing pursuant to CPR 44.2, which applies to interim costs as well as costs
at the end of a trial. It can decide whether costs are payable by one party to
the other, the amount of the costs and when they will be paid. The court can
take the conduct of the parties into account when making such orders.
Conduct includes the way the parties have behaved during the whole course
of the claim, both before and after issue of proceedings.

It will be up to you to persuade the court that it should agree with your
submissions on costs. The starting point will be whether you have won or lost
the application as costs generally ‘follow the event’ (the losing party normally
pays the winning party’s costs) but the court can depart from this general rule
if there is a good reason to, such as unreasonable conduct by the winning
party.

Types of interim costs order

The types of interim costs order are summarised in 44 PD 4.

[Please note: On slide 15 in the lecture accompanying this chapter, the

lecturer refers to points 1, 2 and 8 in paragraph 1.9 of this Chapter as being

LAW SCHOOL 01/06/2022 12:51:00 PM/CK Page 9 of 13

CHAPTER 8 PART 1 LPC: CIVIL LITIGATION

the costs orders which students need to know. As will be clear from your
reading of paragraph 9 here and below, the relevant orders you now need to
know are 1, 2 and 3. Points 4 to 8 inclusive are now for information only.]

They include:

1. Costs in any event (and summary assessment of costs)

The party in whose favour this order is made will recover his costs of the
interim hearing from the other party regardless of who eventually wins at trial.
This order is linked with the idea of “summary assessment of costs”.

Summary assessment of costs for costs in any event orders

Summary assessment of costs takes place at the end of a hearing if:

a) the matter is disposed of in not more than a day, and

b) a ‘costs in any event’ order is made. (44 PD 9.2)

The court will put a figure on the costs due and it will be payable by the losing
party within 14 days. This is a process known as ‘summary assessment’ (CPR
44.6 (1)(a)).

To enable the court to do this, the parties file signed statements of their costs
with the court (preferably on the standard form N260 (44 PD 1.2)) and serve
them on each party not less than 24 hours before the time fixed for the hearing
(44 PD 9.5(4)(b)). For a fast track trial this time limit is extended to not less
than 2 days before the trial (44 PD 9.5(4)(a)).

What must a statement of costs contain?

- The number of hours claimed.

- The hourly rates of the fee earners carrying out the work.
- The grade of fee earner.
- The amount and nature of disbursements.
- The solicitor’s costs for attending or appearing at the hearing.
- Counsel’s fees (if appropriate).
- VAT.

44 PD 9.5(2)

The judge hearing the application will go through the statement of costs
reducing any figures he or she feels are unjustified. The judge will then make
an order for whatever figure he or she considers appropriate.

2. Costs in the case (also known as costs in the application)

The party who eventually gets his costs at trial (usually the winner) will recover
its costs of the interim hearing from the other party i.e. usually the party that
wins at trial will recover the costs of this application.

Page 10 of 13 01/06/2022 12:51:00 PM/CK LAW SCHOOL

LPC: CIVIL LITIGATION CHAPTER 8 PART 1

LAW SCHOOL 01/06/2022 12:51:00 PM/CK Page 11 of 13

CHAPTER 8 PART 1 LPC: CIVIL LITIGATION

3. No order for costs (or if no order is made)

Each party will bear its own costs of this hearing.

The above interim costs orders are the ones which you will be using on this
module. There are other interim costs orders referred to in 44 PD and
elsewhere which you will come across in practice. They are referred to
immediately below.

4. Claimant or defendant’s costs in the case/costs in the application

In the case of the claimant’s costs in the case, if the claimant is successful and
receives an order that it should be entitled to its costs at the end of trial, it can
include the costs of the interim application. If the defendant is awarded costs
at trial, the claimant does not have to pay the defendant’s costs of the interim
application.

5. Costs reserved

The decision about who pays the costs of the interim hearing is put off to a
later occasion. If no decision is made then, the costs will be in the case (see
point 2 above).

6. Costs thrown away

If a judgment or order is set aside, the party in whose favour this order is
made is entitled to the costs incurred as a result of the hearing (including
preparation and attendance) at which the order is set aside. The rationale is
that the judgment or order should never have been made so the party at fault
should be punished by having to pay the costs of it being set aside.

7. Costs of and caused by

A party must pay the costs resulting from something that party has done e.g.
costs incurred by the defendant resulting from a claimant amending its
particulars of claim.

8. Wasted costs order – CPR 46.8

The court may also decide to make a wasted costs order. This is not the
same as costs thrown away. A wasted costs order requires the party’s legal
adviser to pay the costs as the court dictates. So this order is intended to
punish the lax lawyer. It is not referred to in 44 PD 4. Please refer to CPR
46.8.

1.10 After the hearing

You should:

1. make a full attendance note;

Page 12 of 13 01/06/2022 12:51:00 PM/CK LAW SCHOOL

LPC: CIVIL LITIGATION CHAPTER 8 PART 1

2. report to the client (there is a duty to notify the client in writing about any
costs order made against them no less than seven days after the
solicitor receives notice of the order (CPR 44.8) unless the client was
present at the hearing); and
3. make a new timetable for the file incorporating any directions given by
the court for the further conduct of the action.

The order will normally be drawn up, sealed and served by the court unless
otherwise provided (CPR 40.3). Orders are normally effective from the date
they are given or made rather than the date of drawing up, sealing or service
(CPR 40.7).

1.11 Consent orders (CPR 40.6)

It is possible for parties to agree terms in which a judgment or order should be
made. If this is the case, and provided none of the parties is a litigant in
person, the court may approve the consent order without the need for a full
hearing. If a consent order is going to be used to settle an interim application,
the court must be notified at the earliest possible opportunity so the hearing
can be vacated.

Further reading

CPR 23, 23A PD, CPR 44.2, 44.6, 44.8, PD44 section 1 (General).

LAW SCHOOL 01/06/2022 12:51:00 PM/CK Page 13 of 13