Interim Applications — SQE1 FLK1 Dispute Resolution

Your client is a software company. A former employee has walked out with its source code, and you apply to stop her using it at a competitor. The notice says what order you want and, in three sentences, why. But the time estimate box is blank and you have not given an address for service. Her solicitor writes back: the application is a nullity. Is he right? No.

This is Interim Applications, and it is the part of litigation where you pause the game and ask the referee for a ruling before the whistle. There is a lot of machinery here. Notice periods, evidence, and half a dozen distinct applications with their own tests. Keep that software company in mind. It is going to need three of them.

Here is the route. The application notice, and what the rule actually requires. Then service, and the notice period, which is where the counting goes wrong. Then evidence, and when a witness statement is not enough. Then the big four: summary judgment, interim payments, injunctions, and strike-out. Then security for costs, pre-action disclosure, and relief from sanctions.

Start with what these are. An interim application is a request for a ruling now, during the case, without waiting for trial. The defendant is moving assets. Documents are about to be destroyed. A defence is hopeless and should not be allowed to run for another year. Interim applications are how you get those rulings early.

One question before any of them. Is this really necessary? Is there another way to the same result? Courts do not like applications that burn time and money, and losing one usually means paying the other side's costs. Proportionality first, always.

Now the notice itself, and this is where your opponent got it wrong. CPR 23.6 requires an application notice to state two things. What order you are seeking, and briefly, why. That is the whole rule.

The time estimate, the box asking whether you want a hearing, the address for service: those are requirements of the practice form, N244, and of the rules on service. Not of CPR 23.6. And even where a rule is broken, the consequence is not nullity. Under CPR 3.10 an error of procedure does not invalidate any step unless the court so orders, and the court may make an order to remedy it. So the judge asks for the missing details and gets on with it.

File the notice at court and serve it on the other parties. Then the notice period, and here the exam sets a trap with two jaws. CPR 23.7 says the notice must be served at least 3 days before the court deals with the application, and CPR 2.8 computes that as 3 clear days.

Jaw one: clear days exclude both the day of service and the day of the hearing. Jaw two: the clock runs from deemed service, not from the day you posted it. Work it with me. You post first class on Monday 11 November.

By first class post the notice is deemed served on the second day after posting, if that is a business day. So deemed service is Wednesday 13 November, whatever day it actually landed. Now count three clear days. Thursday 14. Friday 15. And then, because this period is 5 days or less, days that are not business days drop out, so the weekend disappears. Monday 18. The hearing cannot be on the last clear day, so the earliest date is Tuesday 19 November.

Sometimes 3 days is 3 days too many. Assets are moving now. Files are being deleted now. You can ask for a shorter notice period, or apply without notice to the other side at all. But without notice is exceptional, and it carries a price. You owe the court a duty of full and frank disclosure, which means telling it everything relevant, including the things that damage your own case.

Evidence next, because an application is only as good as what supports it. The usual vehicle is a witness statement under CPR Part 32, from someone with personal knowledge. I saw the defendant moving files. Not, I was told that. It ends with a statement of truth, and signing a false one can be contempt of court.

Sometimes a witness statement is not the only thing you need. A medical report in a personal injury claim, a valuation in a property dispute. Expert reports must comply with CPR Part 35. They must give the expert's qualifications, the facts relied on, the opinions, and a statement that the expert understands their duty to the court.

But not every application takes a witness statement. Try one. You are applying without notice for a freezing injunction, and you have a search order in mind for the same defendant. Witness statement, or something else?

Something else. An application for a freezing injunction must be supported by evidence on affidavit or affirmation, under CPR 25.13. The same is true of a search or imaging order, under CPR 25.17. An affidavit is sworn rather than merely signed. Get that wrong on the most urgent application of your career and you will be sent away to redo it.

One more piece of machinery before the applications themselves. You do not always need a hearing. CPR 23.8 allows the court to deal with an application without one in three situations. Where the parties agree the terms of the order. Where the parties agree the court should dispose of it without a hearing. Or where the court does not consider a hearing appropriate.

Now summary judgment, under CPR Part 24. This is the court saying the case should not go to trial at all. Under CPR 24.3 the court may give summary judgment against a claimant or a defendant, on the whole of a claim or on a particular issue. Two limbs, and both must be satisfied. That party must have no real prospect of succeeding. And there must be no other compelling reason why the case should be disposed of at a trial.

What does real mean? Realistic, as opposed to fanciful. The case must carry some degree of conviction and be more than merely arguable. But it does not have to be probable. A claimant can have a real prospect of success and still be more likely than not to lose. A weak case is not a hopeless one.

The principles are collected in Easyair Ltd v Opal Telecom Ltd, from 2009, and two of them decide most applications. The court must not conduct a mini-trial. It cannot resolve a conflict of evidence on the papers, because that is what cross-examination is for. And the court should hesitate where fuller investigation might add to the evidence, which it usually would when disclosure is still to come.

And do not lose the second limb. Even where there is no real prospect, the court must still ask whether there is some other compelling reason for a trial. A difficult point of law that needs authoritative determination, perhaps, or a public interest in the matter being heard out. But where a case really has no merit, compelling reasons are rare.

Do not confuse it with striking out. Under CPR 3.4 the court may strike out a statement of case on three grounds. It discloses no reasonable grounds for bringing or defending the claim. It is an abuse of the court's process. Or it is likely to obstruct the just disposal of the proceedings. Striking out looks at the pleading. Summary judgment looks at the case.

Interim payments now. This is money the defendant pays before trial, an advance on the final judgment, and it matters enormously to a claimant who cannot work and cannot wait. CPR 25.23 sets out the conditions, and only one of them needs to be satisfied.

Three of them matter. The defendant has admitted liability. The claimant has obtained judgment for damages to be assessed. Or the court is satisfied that the claimant would obtain judgment for a substantial amount of money if the claim went to trial. Try one. Liability is admitted in the defence, the medical evidence is still developing, and the claimant is in arrears on his mortgage. Can he get an interim payment?

Yes. Liability is admitted, so a condition is satisfied and the gateway is open. Note what did not open it. Hardship is not a condition. Need is not a condition. They may influence how the court exercises its discretion, but they cannot supply a gateway the rule does not give.

Then the amount, which is capped. The court must not order more than a reasonable proportion of the likely amount of the final judgment, assessed conservatively. A defendant's wealth does not enlarge that cap. Where a report puts the likely award at between £30,000 and £50,000, an application for £15,000 is a modest fraction of even the bottom of the range.

Interim injunctions. An order to stop doing something is prohibitory. An order to do something is mandatory. Interim ones are temporary, made before trial to hold the position until the court can decide. Four types matter. Prohibitory. Mandatory, where the bar is higher because it is more intrusive. Freezing orders. And search orders.

Take the ordinary case first, your software company against its former employee. The court does not try the merits. It asks three questions in turn.

One: is there a serious question to be tried? A low threshold, cleared by showing the claim is not frivolous or vexatious, which is why being unable to prove the case yet does not defeat the application. Two: would damages be an adequate remedy? If money could compensate the claimant, no injunction is needed. And if not, would the cross-undertaking adequately compensate the defendant, if the injunction turns out to have been wrongly granted?

Three: where does the balance of convenience lie? And where the factors are evenly balanced, the court leans towards preserving the position as it stands. So the employee's point, that an injunction would cost him a job no award of money could restore, is not sentiment. It goes directly to the second question.

That cross-undertaking is the price of interim relief. You promise the court that if it later appears the injunction should not have been granted, you will compensate the loss it caused. Not a formality. A competitor restrained from selling for a season, who then wins at trial, may come back with a very large number.

Freezing orders are the draconian end. They stop a defendant moving assets beyond the court's reach, up to the value of the claim, and you must show three things. A good arguable case. Assets within the jurisdiction. And a real risk of dissipation. The defendant can still spend on ordinary living expenses and legal costs.

Search orders are the nuclear option, and back to your software company. It has evidence the employee copied the code to a personal laptop and discussed covering his tracks. It wants its own solicitors and IT staff to enter his home this afternoon and take away any device holding the code. Will the court allow that?

No. Not in that form. A search order permits entry to private premises to preserve evidence. It is granted only exceptionally: on an extremely strong case, with clear evidence of incriminating material and a real possibility it will be destroyed. Execution is overseen by an independent supervising solicitor, appointed by the court and not from the applicant's own firm, who reports back. Your own solicitors do not get to search anybody's house.

Three more to know. Security for costs, under CPR 25.27, has two parts. The court must be satisfied it is just in all the circumstances, and one of the listed conditions must apply. The one you will meet most is that the claimant is a company, wherever incorporated, and there is reason to believe it cannot pay the defendant's costs if ordered to.

Pre-action disclosure, under CPR 31.16, is for documents you need before you can even decide whether to sue. You need permission, and you must show that proceedings are likely, that disclosure is necessary to dispose of them fairly, and that it is in the interests of justice.

Extensions of time are the most ordinary application of the lot. Deadlines are strict, but things go wrong. Ask the other side first. An unopposed extension is usually rubber-stamped, and both of you are spared the cost of arguing about it.

And relief from sanctions, under CPR 3.9, for when you have missed a deadline and a sanction has bitten. The approach is the three stages in Denton v TH White Ltd, from 2014. Identify and assess the seriousness of the breach. Consider why it happened. Then consider all the circumstances, to deal with the application justly. Apply promptly. Delay is its own answer.

A word on how SQE1 tests this. You will not be asked to recall a case name or a rule number. You get a scenario, five answers, and one instruction: pick the best. Learn what each application requires and what it does to facts.

If you keep only three. CPR 23.6 and CPR 3.10 together, because the notice needs two things and an omission is not fatal. CPR 24.3, no real prospect and no other compelling reason. And Denton v TH White Ltd, for the three stages every relief from sanctions answer runs through.

Six traps. One: the notice period is counted in clear days, from deemed service. Count from the day you posted it, or forget to strip out the day of the hearing, and you get the wrong date.

Two: no real prospect is not the balance of probabilities. If the answer says the claimant is more likely than not to lose, that is not the test, and summary judgment does not follow.

Three: hardship is not a gateway to an interim payment. It may move the discretion, but a condition in CPR 25.23 must be satisfied first.

Four: a freezing injunction and a search order need an affidavit, not a witness statement. And five: without notice brings the duty of full and frank disclosure with it. Hide the inconvenient fact and the order you fought for gets discharged.

And six: losing an interim application usually means paying the winner's costs, and they mount fast. Court fees, preparation, hearing time. The court can order indemnity costs against a hopeless or aggressive application. Before you apply, ask whether you can afford to lose.

Quick check. A defendant applies for summary judgment on a claim for breach of an oral agreement he says was never made. The claimant has no document recording it and no witness but himself, and accepts his case will be hard to prove. He points to a course of dealing consistent with the agreement, and a text message he says makes sense only if it existed. The defendant has filed a witness statement flatly denying the conversation. Neither side has given disclosure.

What order is the court most likely to make? Three candidate answers. One: give summary judgment, because the claimant is more likely than not to lose. Two: give summary judgment, because the claimant's account is contradicted on oath. Three: dismiss the application, because the claim has a real prospect of success. Pause here if you want a moment.

The answer is three. A weak case is not a hopeless one. The claimant does not have to show he will probably win, only that his case is realistic rather than fanciful. The course of dealing and the text message get him there.

Why the others fail. Option one applies the balance of probabilities, and that is not the test. Option two asks the court to prefer one account over another on the papers, which is precisely the mini-trial it must not conduct. A flat denial on oath creates exactly the conflict of evidence summary judgment cannot resolve.

Five things to take away. One: your opponent was wrong. CPR 23.6 wants the order sought and briefly why, and CPR 3.10 means a blank box on the form is not a nullity. Two: three clear days, counted from deemed service, with the day of service and the day of the hearing both stripped out.

Three: summary judgment needs no real prospect and no other compelling reason, and the court must not conduct a mini-trial. Four: an interim payment needs a condition satisfied first, and is then capped at a reasonable proportion of the likely final judgment. Five: freezing and search orders go on affidavit, and a search is run by an independent supervising solicitor, never your own.

That is Interim Applications. Next time, Case Management.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.