DR – WS5 Preparing an Interim Application and Drafting the Defence TIFF LIAO
Chapter 10 – Applications to the Court Page 167
PROCEDURE: APPLICANTION GENERALLY
RESOLVING
The parties should first see whether the issue can be resolved through agreement without an
application to the court:
SEEK Pursuant to the overriding objective – CPR PART 1 and Hannigan v Hannigan [2000] 2 FCR
AGREEMENT 650
FIRST Failure to do, could lead to an adverse costs order being made against you
It may be the case that you CANNOT agree either because:
(a) Your opponent is not willing; or
(b) The rules prevent you from amending by agreement.
e.g. 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 (serve notice) that you intend to make
an application.
WHERE TO - By r 23.2, the application must be made to the court where the:
MAKE AN claim has been started, or
APPLICATION claim has been sent.
- If the claim has already been listed for trial = MUST be made to the court where the trial is to
take place.
Most applications will be heard by:
a master in the RCJ, or
a district judge
= either the COUNTY COURT or a HIGH COURT DISTRICT REGISTRY.
Any application made BEFORE a claim form has been issued should normally be made to the
court where the proceedings will be started, but in the COUNTY COURT can be made to ANY County
Court hearing centre UNLESS any enactment, rule or practice direction provides otherwise.
If not, notify your opponent (i.e. serve notice) that you intend to make an application (unless
exception in PD 23A para 3 applies – freezing injunction or search order). 3 days before hearing
o Para 3 of PD 23A states that it can be done in the circumstances, e.g.
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 the court
DOCUMENT FILE
CPR 23.6 – 23.7 File and serve:
(a) An application notice and time limit -
This is the FORM N244 verified by statement of truth.
- By r 23.6, an application notice MUST STATE:
what order the applicant is seeking AND,
briefly, why the applicant is seeking the order.
- If the applicant wishes to rely on matters set out in the application notice as evidence at the
hearing, then it must be verified by a statement of truth.
2nd page of Form N244.
3rd page = Details of any vulnerable party or witnesses
4th page = The statement of truth
- It must be served “as soon as practicable after if its filed” and in any event at least 3 clear days
before the hearing (CPR 23.7(1), unless another time limit is specified.
(b) Evidence –
1
TIFF LIAO
, DR – WS5 Preparing an Interim Application and Drafting the Defence TIFF LIAO
Chapter 10 – Applications to the Court Page 167
- This can be set out in Panel 10 of the FORM N244, but for more complex cases will generally be
in the form of a separate witness statement.
- Certain of the rules set out a specific requirement for evidence in support of a particular
application.
- Apart from that, PD 23A para 9.1 - that where there is no specific requirement to provide
evidence, it should be borne in mind that, as a practical matter, the court will often need to be
satisfied by evidence of the facts that are relied on in support of, or for opposing, the
application.
- The evidence will usually take the form of a witness statement, although a party may also rely on
the contents of a statement of case or the application notice itself as evidence, provided it is
verified by a statement of truth.
- Affidavits may be used - BUT the extra cost of preparing an affidavit over and above that of a
witness statement may be DISALLOWED since affidavits are no longer required, except for a
limited number of specific applications
(e.g freezing injunctions and search orders )
- Any evidence relied upon MUST be filed at the court as well as served on the parties with the
application notice.
- Any evidence in response must be served asap.
(c) Draft order –
- PD 23A, para 12.1 provides that save in the most simple application.
The applicant should attach a draft of the order sought.
It is usual for the applicant to provide the draft order in electronic format also.
(d) Submit the application notice to the court where the claim will be issued/was started/has been
sent/where trial is to take place: r23.2.
Along with:
Requisite fee;
An additional copy of notice for each party;
A copy for the court; and
A copy of the draft order sought, in all but the most simple application: PD 23A
Different cost orders may be made at the end of an interim hearing – set out in PD 44 PARA 3.2.
Most common ones:
INTERIM COST (a) D pay the C’s costs
ORDERS (b) The C pay the D’s costs
(c) Cost in the case
(d) The D pay the C’s costs in the case
(e) The C pays for the D’s costs in the case
(f) Costs thrown away
(g) No order as to costs.
[SEE BELOW]
2
TIFF LIAO
Chapter 10 – Applications to the Court Page 167
PROCEDURE: APPLICANTION GENERALLY
RESOLVING
The parties should first see whether the issue can be resolved through agreement without an
application to the court:
SEEK Pursuant to the overriding objective – CPR PART 1 and Hannigan v Hannigan [2000] 2 FCR
AGREEMENT 650
FIRST Failure to do, could lead to an adverse costs order being made against you
It may be the case that you CANNOT agree either because:
(a) Your opponent is not willing; or
(b) The rules prevent you from amending by agreement.
e.g. 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 (serve notice) that you intend to make
an application.
WHERE TO - By r 23.2, the application must be made to the court where the:
MAKE AN claim has been started, or
APPLICATION claim has been sent.
- If the claim has already been listed for trial = MUST be made to the court where the trial is to
take place.
Most applications will be heard by:
a master in the RCJ, or
a district judge
= either the COUNTY COURT or a HIGH COURT DISTRICT REGISTRY.
Any application made BEFORE a claim form has been issued should normally be made to the
court where the proceedings will be started, but in the COUNTY COURT can be made to ANY County
Court hearing centre UNLESS any enactment, rule or practice direction provides otherwise.
If not, notify your opponent (i.e. serve notice) that you intend to make an application (unless
exception in PD 23A para 3 applies – freezing injunction or search order). 3 days before hearing
o Para 3 of PD 23A states that it can be done in the circumstances, e.g.
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 the court
DOCUMENT FILE
CPR 23.6 – 23.7 File and serve:
(a) An application notice and time limit -
This is the FORM N244 verified by statement of truth.
- By r 23.6, an application notice MUST STATE:
what order the applicant is seeking AND,
briefly, why the applicant is seeking the order.
- If the applicant wishes to rely on matters set out in the application notice as evidence at the
hearing, then it must be verified by a statement of truth.
2nd page of Form N244.
3rd page = Details of any vulnerable party or witnesses
4th page = The statement of truth
- It must be served “as soon as practicable after if its filed” and in any event at least 3 clear days
before the hearing (CPR 23.7(1), unless another time limit is specified.
(b) Evidence –
1
TIFF LIAO
, DR – WS5 Preparing an Interim Application and Drafting the Defence TIFF LIAO
Chapter 10 – Applications to the Court Page 167
- This can be set out in Panel 10 of the FORM N244, but for more complex cases will generally be
in the form of a separate witness statement.
- Certain of the rules set out a specific requirement for evidence in support of a particular
application.
- Apart from that, PD 23A para 9.1 - that where there is no specific requirement to provide
evidence, it should be borne in mind that, as a practical matter, the court will often need to be
satisfied by evidence of the facts that are relied on in support of, or for opposing, the
application.
- The evidence will usually take the form of a witness statement, although a party may also rely on
the contents of a statement of case or the application notice itself as evidence, provided it is
verified by a statement of truth.
- Affidavits may be used - BUT the extra cost of preparing an affidavit over and above that of a
witness statement may be DISALLOWED since affidavits are no longer required, except for a
limited number of specific applications
(e.g freezing injunctions and search orders )
- Any evidence relied upon MUST be filed at the court as well as served on the parties with the
application notice.
- Any evidence in response must be served asap.
(c) Draft order –
- PD 23A, para 12.1 provides that save in the most simple application.
The applicant should attach a draft of the order sought.
It is usual for the applicant to provide the draft order in electronic format also.
(d) Submit the application notice to the court where the claim will be issued/was started/has been
sent/where trial is to take place: r23.2.
Along with:
Requisite fee;
An additional copy of notice for each party;
A copy for the court; and
A copy of the draft order sought, in all but the most simple application: PD 23A
Different cost orders may be made at the end of an interim hearing – set out in PD 44 PARA 3.2.
Most common ones:
INTERIM COST (a) D pay the C’s costs
ORDERS (b) The C pay the D’s costs
(c) Cost in the case
(d) The D pay the C’s costs in the case
(e) The C pays for the D’s costs in the case
(f) Costs thrown away
(g) No order as to costs.
[SEE BELOW]
2
TIFF LIAO
