1. Interim Applications – Overview1
Civil Litigation, Chapter 10
During the course of litigation, a party can apply to court to ask them to make an order. The order can be
for a variety of reasons, for instance it may be to:
Ask permission to extend a court deadline (if this unable to be achieved by agreement between the
parties
Set aside default judgment if this has been entered against a party
Amend a statement of case.
Procedure
Seek The parties should first see whether the issue can be resolved through agreement
Agreement First without an application to the court:
Pursuant to the Overriding Objective (CPR Part 1).
Hannigan v Hannigan [2000] 2 FCR 650
It may be the case that you cannot agree either because:
Your opponent is not willing, or
The rules prevent you from amending by agreement.
For instance, if the Application is to Extend Time for Service of the
Defence, parties are only permitted to agree an extension of time to
file the defence by up to 28 days. They must notify the court in writing
if they so agree. If the parties cannot agree, an application to the court
will be necessary.
If you cannot agree, you should notify your opponent (i.e., serve notice) that you
intend to make an application.
Documents to File and serve (CPR 23.6-23.7):
File An application notice (N244).
The N244 must be verified by a statement of truth.
Evidence
This can be set out in Panel 10 of the N244, but for more complex
cases will generally be in the form of a separate witness statement.
Draft order (required in all but the most simple applications (PD 23A, Para
12.1).
Fee
The N244 must be served “as soon as practicable after it is filed” and in any event at
least three clear days before the hearing (CPR 23.7(1))
Interim Costs Different costs orders may be made at the end of an interim hearing. The various are
Orders set out in PD 44 Para 4.2, the most common of which are repeated below. They have
the following effects:
Civil Litigation,
10.3 The Defendant The Claimant is entitled to that party's costs in respect of the
Pay the part of the proceedings to which the order relates, whatever
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Workshop 5, Prep Task
, Claimant’s Costs other costs orders are made in the proceedings.
The Claimant Pay The Defendant is entitled to that party's costs in respect of the
the Defendant’s part of the proceedings to which the order relates, whatever
Costs other costs orders are made in the proceedings.
Costs in the Case “Wait and see” – whoever loses at trial will pay the other’s
costs.
The Defendant “Wait and see”; if the Claimant wins at trial, the Defendant will
Pay the pay the Claimant’s costs of the application. If the Claimant
Claimant’s Costs loses at trial, each party will bear their own costs of the
in the Case application.
The Claimant Pay “Wait and see”, if D wins at trial, C will pay D’s costs of the
the Defendant’s application; if D loses at trial, each party will bear their own
Costs in the Case costs of the application.
Costs thrown The party in whose favour the costs order is made is entitled
away. to the costs which have been incurred as a consequence of an
order being set aside.
No order as to Each party will bear their own costs.
costs.
Amending a Statement of Case
Civil Litigation, 7.6
The University of Law ordinarily teaches the requirements of interim applications by asking students to
complete an Application Notice to amend a statement of case2. It is therefore necessary to appreciate the
circumstances when an application to amend a Statement of Case can be made:
Refer to the Exemplar and N244 Application Checklist for drafting guidance.
Restrictions on You can amend the Statement of Case at any time before service (CPR 17.1(1).
Amending a
Statement of However, if you have already served the Statement of Case, you can only amend if:
Case You have the written consent of all parties or
Permission from the court (only normally needed where the parties do not
give consent) (CPR 17.1(2)).
If you make amendments without the court’s permission, the court may disallow this
under CPR 17.2.
Therefore, where a party does not consent to an amendment, you must make an
application to court using the above method (filing form N244 and the relevant
accompanying documents).
2. N244 Interim Application Checklist3
An application to Court made during the course of ongoing proceedings (an Interim Application) is made
on the form N244 (Application Notice).
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Preparing the N244 is the Workshop 5, Prep Task.
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Workshop 5, Prep Task
, Name of Court Fill in the name of the court (as shown on the Claim Form / Particulars of Claim
/ Defence).
Claim No. If the claim is issued, the claim will have a Claim No. This will be on the issued
Claim Form / Particulars of Claim / Defence.
Leave blank if no Claim No. allocated (if the Claim has not been issued e.g., it is
a Pre-Action Disclosure Application).
Fee Account This is the firm’s reference number which is used by the court to debit Court
Number Fees.
Check the question for details.
Help With Fees Ref Only relevant if the Applicant is in receipt of legal aid.
Leave blank.
Warrant No. Leave blank.
Claimant’s Name Insert the Claimant’s full name and title.
(Including Ref) If several Claimants, put “[First Claimant] and others”.
Do not forget to include the solicitors’ reference.
Defendant’s Name Insert the Defendant’s full name and title.
(Including Ref) If several Defendants, put “[First Defendant] and others”.
Do not forget to include the solicitors’ reference.
1. What is your Enter the name of your firm.
name or, if you are
a legal
representative,
the name of your
firm?
2. Are you a…. Tick “Legal Representative” as we are filling in the form on behalf of our client.
3. What order are Set out the terms of the order sought.
you asking the If the order is relatively simple, you can use the same wording as in the
court to make and draft order.
why? If the order is complex (e.g., a freezing injunction), then summarise the
relief sought.
Include any claim for interest and costs.
Briefly set out why you are seeking the order.
Include the material facts on which you rely, identifying any rule or
statutory provision.
This box should be an “at-a-glance” summary of the basis of your application.
Often 2 – 4 sentences will suffice.
E.g., “An order for a 28-day extension of time for the filing and service of the
defence until 16:30 on 4 May 20XX because the defendant is not yet in a
position to finalise, file and serve its defence”.
4. Have you “Yes”.
attached a draft of Should generally include a Draft Order (CPR 23.7 and PD 23A, Para 12.1).
the order you are
applying for?
5. How do you A contested application should generally be dealt with at a hearing.
want to have this Short and simple applications can be dealt with via telephone hearing.
