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.
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.
