Get the information you need to practice law Quickly, Easily and No Subscription Required.
What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Applications - overview
When making an application to the court bear in mind the timings for the sittings of the Court of Appeal and the High Court which are set out in CPR PD 39B.
Automatic orders pilot scheme
This pilot scheme comes to an end on 30 September 2012. The scheme provides that in the event of a party failing to file an allocation question or a pre-trial checklist the party's claim will automatically be struck out by the court. It also provides for the court to make orders in relation to a stay of proceedings where all parties agree to a stay for the purposes of exploring settlement.
For more detail see Automatic orders pilot scheme.
Applying for orders by consent
If parties are legally represented then they can agree certain judgments and orders without the court's approval. Where the judgment or order does not deal with the issue of the costs then none are payable. If they are not, then the parties can apply to the court for an order in the agreed terms. The documents required to do this and the procedure required are set out in the CPR.
For more detail see the following practice notes:
Applying for orders by consent
Consent orders and judgments
Making an application
Applications should be made so that they can be considered at the Case Management Conference, allocation or listing hearing or pre-trial review, although they can be made at other times. The CPR set out the documents required for an application, what those documents should contain and the procedure to be adopted.
There are specific issues which cannot be addressed in an application, for example, any contention that a party does not consider is properly arguable. Applications may be heard by a master, district judge or judge but only a judge can make certain orders, for example, search orders or freezing orders. The court will need to be satisfied by the evidence of the facts relied upon before it will grant any orders requested.
For more detail see Making an application.
Serving documents on the respondent
Different rules apply for applications made with notice and those made without. The procedures are set out in the CPR. Some courts have specific rules which must also be adhered to. For example, the Commercial Court requires the applicant, and not the court, to serve the application notice and supporting evidence.
For more detail see Serving documents on the respondent.
Applications without notice
Applications can be made without notice in certain circumstances, for example, in cases of exceptional urgency. The applicant will owe a duty to the court to disclose everything relevant to the application, even if unhelpful to his own case. An application for an injunction will also require undertakings by the applicant.
After an application without notice has been granted or dismissed, the applicant must, unless the court orders otherwise, serve on the respondent the court order, copy application notice and evidence in support.
For more detail see Applications without notice.
Timetables apply prior to the hearing to ensure that all relevant documentation is made available to the respondent and the court. The timetable will differ depending on which court is hearing the application. Courts are making increasing use of telephone and video-conferencing for hearings. In the district registries and county courts, specific hearings (such as allocation hearings) are by telephone unless the court orders otherwise. The CPR and other sources set out how the court will conduct a telephone hearing.
Courts can make an order without a hearing in certain circumstances.
For more detail see Hearing applications.
Applications in the Commercial Court
Specific rules apply in relation to applications in the Commercial Court. The application notice is filed at court and then the applicant must serve it, and the supporting evidence, on the respondent. The timetable applicable will vary depending on the length of the hearing. Applications can made prior to commencing proceedings. An application is then made to a Commercial Court judge supported by written evidence that the intention is to bring the proceedings in the commercial list.
For more detail see Applications in the Commercial Court.
Forms of Address for the Judiciary
There are certain protocols that need to be followed when addressing members of the judiciary. These protocols apply both to communications by way of correspondence and when addressing the judiciary in court.
For more detail see Forms of address for the judiciary.
Transcripts - High Court
It should be possible to obtain a transcript of any hearing in open court by appointing a transcriber and completing the relevant form. It is also possible to arrange for 'live' or 'real time' recordings of court hearings though these must be arranged in advance of the hearings.
For more detail see Transcripts - High Court.
Making judgments and orders
Judgments and orders must show the date on which they were made and must be sealed by the court. Other requirements are dependent upon the type of judgment or order and the court in which it is made.
Courts may draw up orders or request that the parties do so. There are a number of court forms of orders and judgments. All consent orders are prepared by the parties.
Judgments can be given at the hearing or may be reserved to a later date. A reserved judgment is circulated to the parties on a confidential basis two days before it is handed down. This provides time, for example, to try and agree any consequential orders with the other parties.
For more detail see Making judgments and orders.
Tomlin orders are a form of consent order. The order stays the proceedings and the schedule attached to the order sets out the terms of the settlement between the parties. The courts have no general power to vary the terms of the schedule unless specifically provided for in the order which is extremely rare.
For more detail see Tomlin Orders.
Varying or revoking orders
Although rare there may be a reason for a court order to be varied, revoked or corrected. A party, and in some circumstances a non-party, can apply to have an order varied or revoked either before the order is sealed or afterwards. The CPR provisions which apply depend on when the application is made. The court has general powers under CPR 3.1(7) and specific powers under CPR 40.9 (non parties) and CPR 40.12 (parties).
For more detail see Varying or revoking orders.
Consent orders and judgments
There is a list of orders and judgments which can be made without court approval, for example a judgment or order for the payment of money or delivery up of goods. There are certain requirements regarding the form of such an order, for example, it must be marked 'By Consent'. A consent order can in exceptional circumstances be set aside.
For more detail see Consent orders and judgments.
After a judgment or order has been made
Orders must be served on the applicant, respondent and any other party that the court directs. Judgments or orders which require payment of monies, but give no deadline for payment, require payment within 14 days. Interest on payments runs from the date of the judgment or order unless the court or the CPR states otherwise; there are exceptions to this rule. Non compliance with an order will result in the party's claim being struck out automatically. A party in default may apply for relief under the CPR. A party or non party may appeal against a judgment or order on a number of limited bases provided for in the CPR. If successful, the court may amend or revoke the order or judgment.
For more detail see After a judgment or order has been made.
Reference to the European Court
The Court of Justice of the European Communities (European Court) can give a preliminary ruling on the law of the European Union, the validity of acts of the institutions of the Community and the validity of acts of secondary legislation by which Member States implement Community law. If a party wishes to obtain a preliminary ruling, it must apply to the English court for a 'reference' to the European Court. There are set rules as to which courts may/must make a reference to the European Court. There are also set rules about what the reference must contain. While the content of the reference is the court's responsibility, the court may direct the parties to produce a draft.
For more detail see Reference to the European Court.
Review of a court’s interim decision
When an interim application has been successful a court may reconsider its decision at any point up until the order has been drawn up. After that point the court, in certain circumstances, has the power to vary or revoke an interim order. An interim order may also be renewed in limited circumstances.
For more detail see Review of a court’s interim decision.
Pilot scheme for applications in the TCC
The TCC in the Central London County Court have a pilot scheme in place for e-applications. The scheme allows applications to be made by email where all parties are legally represented. The court intends to deal with applications made this way within 10 days of receipt.
For more detail see Pilot scheme for applications in the TCC .
To find out more about PSL Contact us or call 0207 400 2984