Overview
Applications fall under Part 23 of the Civil Procedure Rules, and are a fairly wide-ranging power of the Court. Applications can come with costs consequences and orders, which I explain below; so whether you are making an Application, or are subject to one – it’s a good idea to be careful how you respond to one.
Types of Application
There are two type of Applications;
With Notice: This is where a party (the Applicant) wants to make an application, informs the other side of their intent to do so, and then serves papers on the other party (the Respondent). The Court must then list the Application for hearing after a minimum period, which is 3 days. This is the most typical type of Application, and the Court will hear from the Applicant and Respondent and come to a conclusion.
Without Notice: This is where an Applicant makes an application without informing the Respondent. Often this can be in the case of Emergency Injunctions, such as for asset freezing orders, where a Respondent may do certain things to avoid enforcement of the Order.
What can you apply for?
In theory you can apply for virtually anything, or to Order a Respondent to do virtually anything. Examples of this could include;
- Striking out a Statement of Case
- Amending a Statement of Case
- Request for Further Information (usually if a part is perceived not to have complied with Part 18)
- Specific Disclosure
- Non-party Disclosure
- Expert Witnesses
- Strike out Witness Statement
- Asset Freezing Orders
- Re-admission of a company director to a board
- Security for Costs
- Reporting Restrictions
These are just a small amount of example and there are many many other examples and cases – and there in theory is nothing prescriptive about what can be applied for, and most Applications will be subject to facts of the case.
In certain Applications, an Applicant may place a Penal Notice on a Draft Order. This will mean that if the Draft Order is approved, a failure to comply with the Order or a breach of the Order, will be deemed as a Contempt of Court.
Making an Application
Usually, when making an Application there are three things that are required to be served;
- An N244 Application Form
- A Draft Order
- A Witness Statement (with supporting evidence)
The N244 if a formality. The Draft Order is what (if the Applicant is successful) the Respondent will need to do. The Witness Statement will set out the background and explain why the Application is necessary.
Usually, the Respondent will then respond to the Application with a Witness Statement, which will be served on the Applicant an the Court.
The Hearing
Usually the Court will list the application for a Hearing……sometimes it can decide the Application ‘on the papers’, or without hearing from the parties at all – these are within the Court’s case management powers.
At the hearing, the Judge will hear from both sides and come to a decision. It may be the case the Respondent opposes the Application in its entirety, or it may be the case the Respondent accepts the Draft Order – but there is a reason why the Respondent didn’t previously agree to it, or a mixture of all of these. Often it can be the case an aggressive opponent makes an Application when it’s not entirely necessary to, or the matter could have been resolved by agreement – the intent of doing to is to rack up costs orders.
In theory there can be 3 outcomes to an Application;
- The Application is approved (and the Draft Order is approved by the Court)
- The Application is dismissed (thus the Draft Order falls away)
- The Application is partly approved (with the Draft Order requiring amendment)
Costs
The general rule of costs in Applications is that the successful party gets their costs. So, if the Application is successful the Applicant has their costs – if the Application fails, the Respondent has there costs.
As I’ve said many times, aggressive opponents will seize upon Applications to get costs orders against their opponents. My personal view is that all costs should be in the case, until a Claim has been disposed of. It is sometimes the case the Court will allow this – but it’s often the exception, not the norm.
Complying with an Order
Once the Draft Order is approved by the Court, it becomes an Order. A Respondent must comply with an Order.
Failing to comply with an Order will likely result in the Applicant returning to Court, and seeking a further Order – this time, if the Applicant’s complaint is accepted, the Court may punish the Respondent through costs orders. Depending on the type of non-compliance, an Applicant could even invite the Court to consider the non-compliance is in Contempt.
If an Order with a Penal Notice is not complied with, it is deemed a Contempt of Court, which can result in a fine or even imprisonment.