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Key Rules: CPR Parts 23 and 25, PDs 23 and 25
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| 5.1 |
This Chapter deals with applications to a judge, including applications for interim remedies, and applications to a Master. As regards the practical arrangements for making, listing and adjourning applications, the Chapter is primarily concerned with hearings at the Royal Courts of Justice. Hearings before Chancery judges outside London are dealt with in Chapter 12.
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| 5.2 |
It is most important that applications which need to be heard by a judge (e.g. most applications for an injunction) should be made to a judge. Any procedural application (e.g. for directions) should be made to a Master unless there is some special reason for making it to a judge. Otherwise the application may be dismissed with costs. If an application is to be made to a judge, the application notice should state that it is a judge's application.
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| 5.3 |
Part 23 contains rules as to how an application may be made. In some circumstances it may be dealt with without a hearing, or by a telephone hearing.
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| 5.4 |
Generally it is wrong to make an application without giving prior notice to the respondent. There are, however, two classes of exceptions.
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(1) |
First, there are cases where the giving of notice might frustrate the order (e.g. a search order) or where there is such urgency that there has not been time to give notice. Even in an urgent case, however, the applicant should notify the respondent informally of the application if possible, unless secrecy is essential.
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(2) |
Secondly, there are in the Chancery Division some procedural applications normally made without notice relating to such matters as service out of the jurisdiction, service, extension of the validity of claim forms, permission to issue writs of possession etc. All of these are properly made without notice but will be subjected by the rules to an express provision in any order made that the absent party will be entitled to apply to set aside or vary the order provided that application is so made within a given number of days of service of the order.
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(3) |
Thirdly, there are cases in which the defendant can only be identified by description and not by name: Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] EWHC 1205 (Ch), [2003] 3 All ER 736.
An application made without giving notice which does not fall within the classes of cases where absence of notice is justified may be dismissed or adjourned until proper notice has been given.
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| 5.5 |
Part 23 makes provision for applications to be dealt with without a hearing. This is a useful provision in cases where the parties consent to the terms of the order sought or agree that a hearing is not necessary (often putting in written representations by letter or otherwise). It is also a useful provision in cases where, although the parties have not agreed to dispense with a hearing and the order is not consented to, the order sought by the application is, essentially, non-contentious. In such circumstances, the order made will, in any event, be treated as being made on the court's own initiative and will set out the right of any party affected by the application who has not been heard to apply to vary or set aside the order.
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| 5.6 |
These provisions should not be used to deal with contentious matters without notice to the opposing party and without a hearing. Usually, this will result in delay since the court will simply order a hearing. It may also give rise to adverse costs orders. It will normally be wrong to seek an order which imposes sanctions in the event of non-compliance without notice and without a hearing. An application seeking such an order may well be dismissed.
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| 5.7 |
If an application is made to a judge in existing proceedings, e.g. for an injunction, it should be made by application notice. This is called an Interim Application. Normally three clear days' notice to the other party is required but in an emergency or for other good reason the application can be made without giving notice, or the full 3 days' notice, to the other side. Permission to serve on short notice may be obtained on application without notice to the Interim Applications judge. Such permission will not be given by the Master. Except in an emergency a party notifies the court of his or her wish to bring an application by delivering the requisite documents to the Chancery Judges' Listing Office (Room WG4) and paying the appropriate fee. He or she should at the same time deliver a completed "Judge's Application Information Form" in the form set out in Part 1 of Appendix 4. An application will only be listed if (1) two copies of the claim form and (2) two copies of the application notice (one stamped with the appropriate fee) are lodged in the Chancery Judges' Listing Office before 12 noon on the working day before the date for which notice of the application has been given.
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| 5.8 |
The current practice is that one judge combines the functions of Interim Applications judge and Companies judge. His or her name will be found in the Daily Cause List and also in the Chancery Division Term List.
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| 5.9 |
The Interim Applications judge is available to hear applications each day in term and an application notice can be served for any day in term except the last. If the volume of applications requires it, any other judge who is available to assist with Interim Applications will hear such applications as the Interim Applications judge may direct. Special arrangements are made for hearing applications out of hours and in vacation, for which see paragraphs 5.28 to 5.34 below.
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| 5.10 |
At the beginning of each day's hearing the Interim Applications judge calls on each of the applications to be made that day in turn. This enables him or her to establish the identity of the parties, their state of readiness, their estimates of the duration of the hearing, and where relevant the degree of urgency of the case. On completion of this process, the judge decides the order in which he or she will hear applications and gives any other directions that may be necessary. Sometimes cases are released to other judges at this point. If cases are likely to take 2 hours or more (including pre-reading and oral delivery of judgment), the judge may order that they are given a subsequent fixed date for hearing (they are then called "Interim Applications by Order") and hears any application for a court order to last until the application is heard fully. Where on or before the day preceding the hearing it becomes likely that the time required for the application (including pre-reading and oral delivery of judgment) will exceed 2 hours, the Chancery Judges' Listing Officer (or, in appropriate cases, the clerk to the Applications Judge) must be notified immediately.
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| 5.11 |
In such a case the solicitors or the clerks to counsel concerned should apply to the Chancery Judges' Listing Officer for a date for the hearing. Before so doing there must be lodged with the Chancery Judges' Listing Office a certificate signed by the advocate stating the estimated length of the hearing. Applications by order may be entered in the Interim Hearings List and, if not fixed by arrangement with the Chancery Judges' Listing Officer, will be liable to be listed for hearing in accordance with the timetable fixed by the judge.
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| 5.12 |
Parties and their representatives should arrive at least ten minutes before the court sits. This will assist the usher to take a note of the names of those proposing to address the court and of their estimate of the hearing time. This information is given to the judge before he or she sits. Parties should also allow time before the court sits to agree any form of order with any other party if this has not already been done. If the form of the order is not agreed before the court sits, the parties may have to wait until there is a convenient break in the list before they can ask the court to make any agreed order. If an application, not being an Interim Application by Order, is adjourned the Associate in attendance will notify the Chancery Judges' Listing Office of the date to which it has been adjourned so that it may be relisted for the new date.
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| 5.13 |
If all parties to an Interim Application agree, it can be adjourned for not more than 14 days by counsel or solicitors attending the Chancery Judges' Listing Officer in Room WG4 at any time before 4pm on the day before the hearing of the application and producing consents signed by solicitors or counsel for all parties agreeing to the adjournment. A litigant in person must attend before the Chancery Judges' Listing Officer as well as signing a consent. This procedure may not be used for more than three successive adjournments and no adjournment may be made by this procedure to the last two days of any sitting.
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| 5.14 |
This procedure should also be used where the parties agree that the application will take two hours or more and that, in consequence, the application should be adjourned to be heard as an Interim Application by Order. In that event, the consents set out above should also contain an agreed timetable for the filing of evidence or confirmation that no further evidence is to be filed. Any application arising from the failure of a party to abide by the timetable and any application to extend the timetable must be made to the judge. Interim Applications by Order will, initially at least, enter the Interim Hearings warned list on the first Monday after close of evidence.
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| 5.15 |
Undertakings given to the court may be continued unchanged over any adjournment. If, however, on an adjournment an undertaking is to be varied or a new undertaking given then that must be dealt with by the court.
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| 5.16 |
On all applications made in the absence of the respondent the applicant and his or her legal representatives owe a duty to the court to disclose fully all matters relevant to the application, including matters, whether of fact or law, which are, or may be, adverse to it. If there is a failure to comply with this duty and an order is made, the court may subsequently set aside the order on that ground alone. The disclosure, if made orally, must be confirmed by witness statement or affidavit. The representatives for the applicant must specifically direct the court to passages in the evidence which disclose matters adverse to the application.
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| 5.17 |
A party wishing to apply urgently to a judge for remedies without notice to the Respondent must notify the clerk to the Interim Applications judge by telephone (the number will be set out in the Daily Cause List). Where such an urgent application is made, two copies of the order sought and an electronic copy on disk (in Word for Windows) and a completed judge's Application Information Form in the form in Part 1 of Appendix 4 should, where possible, be included with the papers handed to the judge's clerk. Where an application is very urgent and the Interim Applications judge is unable to hear it promptly, it may be heard by any judge who is available, though the request for this must be made to the clerk to the Interim Applications judge, or, in default, to the Chancery Judges' Listing Officer. Every effort should be made to issue the claim form before the application is made. If this is not practicable, the party making the application must give an undertaking to the court to issue the claim form forthwith even if the court makes no order, unless the court orders otherwise. A party making an urgent application must ensure that all necessary fees are paid.
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| 5.18 |
The grant of freezing injunctions (both domestic and world-wide) and search orders is a staple feature of the work of the Interim Applications judge. Applications for such orders are invariably made without notice in the first instance; and in a proper case the court will sit in private in order to hear them. Where such an application is to be listed, two copies of the order sought, together with the application notice, should be lodged with the Chancery Judges' Listing Office. If the application is to be made in private, it will be listed as 'Application without notice' without naming the parties. The judge will consider, in each case, whether publicity might defeat the object of the hearing and, if so, may hear the application in private.
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| 5.19 |
Freezing injunctions and search orders are never granted as a matter of course. A strong case must be made out, and applications need to be prepared with great care. The application should always be accompanied by a draft of the order which the court is to be invited to make.
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| 5.20 |
When an application for an injunction is heard without notice, and the judge decides that an injunction should be granted, it will normally be granted for a limited period only -- usually not more than seven days. The same applies to an interim order appointing a receiver. The applicant will be required to give the respondent notice of his or her intention to apply to the court at the expiration of that period for the order to be continued. In the meantime the respondent will be entitled to apply, though generally only after giving notice to the applicant, for the order to be varied or discharged.
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| 5.21 |
These are applications of which proper notice has not been given to the respondents but which are made in the presence of both parties in advance of a full hearing of the application. The judge may impose time limits on the parties if, having regard to the pressure of business or for any other reason, he or she considers it appropriate to do so. On these applications, the judge may, in an appropriate case, make an order which will have effect until trial or further order as if proper notice had been given.
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| 5.22 |
Often the party against whom an injunction is sought gives to the court an undertaking which avoids the need for the court to grant the injunction. In these cases, there is an implied undertaking in damages by the party applying for the injunction in favour of the other. The position is less clear where the party applying for the injunction also gives an undertaking to the court. The parties should consider and, if necessary, raise with the judge whether the party in whose favour the undertaking is given must give a cross-undertaking in damages in those circumstances.
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| 5.23 |
The judge may direct the parties to agree, sign and deliver to the court a statement of the terms of the order made by the court (commonly still referred to as a minute of order), particularly where complex undertakings are given.
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| 5.24 |
It is commonly the case that on an interim application the respondent does not appear either in person or by solicitors or counsel but the applicant seeks a consent order based upon a letter of consent from the respondent or his or her solicitors or a draft statement of agreed terms signed by the respondent's solicitors. This causes no difficulty where the agreed relief falls wholly within the relief claimed in the application notice.
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| 5.25 |
If, however, the agreed relief goes outside that which is claimed in the application notice or even in the claim form or when undertakings are offered then difficulties can arise. A procedure has been established for this purpose to be applied to all applications in the Chancery Division.
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| 5.26 |
Subject always to the discretion of the court, no order will be made in such cases unless a consent signed by or on behalf of the respondent to an application is put before the court in accordance with the following provisions:
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(1) |
Where there are solicitors on the record for the respondent the court will normally accept as sufficient a written consent signed by those solicitors on their headed notepaper.
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(2) |
Where there are solicitors for the respondent who are not on the record, the court will normally accept as sufficient a written consent signed by those solicitors on their headed notepaper only if in the consent (or some other document) the solicitors certify that they have fully explained to the respondent the effect of the order and that the respondent appeared to have understood the explanation.
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(3) |
Where there is a written consent signed by a respondent acting in person the court will not normally accept it as sufficient unless the court is satisfied that the respondent understands the effect of the order either by reason of the circumstances (for example the respondent is himself a solicitor or barrister) or by means of other material (for example, the respondent's consent is given in reply to a letter explaining in simple terms the effect of the order).
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(4) |
Where the respondent offers any undertaking to the court (a) the document containing the undertaking must be signed by the respondent personally, (b) solicitors must certify on their headed notepaper that the signature is that of the respondent and (c) if the case falls within (2) or (3) above, solicitors must certify that they have explained to the respondent the consequences of giving the undertaking and that the respondent appeared to understand the explanation.
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| 5.27 |
See Chapter 7 below.
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| 5.28 |
An application should not be made out of hours unless it is essential. An explanation will be required as to why it was not made or could not be made during normal court hours. Applications made during legal vacations must also constitute vacation business.
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| 5.29 |
There is always a Duty Chancery Judge available to hear urgent out of hours applications. The following is a summary of the procedure:
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(1) |
All requests for the Duty Chancery Judge to hear urgent matters are to be made through the judge's clerk. There may be occasions when the Duty Chancery Judge is not immediately available. The clerk will be able to inform the applicant of the judge's likely availability.
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(2) |
Initial contact should be through the Security Office at the Royal Courts of Justice (tel: 020 7947 6260), who should be requested to contact the Duty Chancery Judge's clerk. The applicant must give a telephone number for the return call.
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(3) |
When the clerk contacts the applicant, he or she will need to know:
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(a) |
the name of the party on whose behalf the application is to be made;
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(b) |
the name of the person who is to make the application and his or her status (counsel or solicitor);
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(c) |
the nature of the application;
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(d) |
the degree of urgency;
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(e) |
the contact telephone numbers.
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(4) |
The Duty Judge will indicate to his or her clerk whether he or she is prepared to deal with the matter by telephone or whether it will be necessary for the matter to be dealt with by a hearing, in court or elsewhere. The clerk will inform the applicant and make the necessary arrangements.
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(5) |
Applications for interim remedies will (normally) be heard by telephone only where the applicant is represented by counsel or solicitors (PD 25, Interim Injunctions, paragraph 4.5). If, however, an applicant not so represented indicates reasons why, exceptionally, the application should be heard by telephone, the judge may require that the applicant be attended by a responsible person who can confirm the identity of the applicant and the accuracy of what is said: see PD 23 paragraphs 6.3 and 8. If satisfied that it is really necessary, the judge may grant an injunction on such an application, but it is likely to be granted for as short a time as possible pending a hearing on notice to the respondent.
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| 5.30 |
Which judge will, in appropriate cases, hear an out of hours application varies according to when the application is made.
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(1) |
Weekdays. Out of hours duty, during term time, is the responsibility of the Applications Judge. He or she is normally available from 4.15pm until 10.15am Monday to Thursday.
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(2) |
Weekends. A Duty Chancery Judge is nominated by rota for weekends, commencing 4.15pm Friday until 10.15am Monday.
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(3) |
Vacation. The Vacation Judge also undertakes out of hours applications.
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| 5.31 |
Sealing orders out of hours. In normal circumstances it is not possible to issue a sealed order out of hours. The judge may direct the applicant to lodge a draft of the order made at Chancery Chambers Registry by 10am on the following working day.
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| 5.32 |
County court matters. Similar arrangements exist for making urgent applications out of hours in county court matters in certain parts of England and Wales. Contact with the Circuit judge on duty for the London County Courts can be made through the Security Office of the Royal Courts of Justice.
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| 5.33 |
There is a Chancery judge available to hear applications in vacation. Applications must generally constitute vacation business in that, in particular, they require to be immediately or promptly heard. Special arrangements exist, however, in the Companies Court for certain schemes of arrangement and reductions of capital to be heard in the Long Vacation (see paragraph 8 of PD 49 -- Applications under the Companies Act 1985Acts).
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| 5.34 |
In the Long Vacation, the Vacation judge sits each day to hear vacation business. In other vacations there are no regular sittings. Mondays and Thursdays are made available for urgent Interim Applications on notice. The judge is available on the remaining days for urgent business.
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| 5.35 |
Applications to a Master should be made by application notice. Application notices are issued by the Masters' Appointments section in Room TM7.09. If the Master has already directed a case management conference the parties should ensure that all applications in the proceedings are properly issued and listed to be heard at the case management conference. If the available listed time is likely to be insufficient to give directions and hear any application the parties should co-operate and invite the court to arrange a longer appointment. It is the duty of the parties to seek to agree directions if possible and to provide a draft of the order for consideration by the Master.
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| 5.36 |
Applications to a Master estimated to last in excess of two hours will require serious co-operation between the parties and will require the Master's directions before they are listed. The Master will normally give his permission to list such an application on condition that there is compliance with directions given by the Master.
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| 5.37 |
Those directions are likely to require:
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(1) |
that the applicant agrees the time estimate (see below) with his opponent;
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(2) |
that, if the time allowed subsequently becomes insufficient, the court is informed and a new and longer appointment given;
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(3) |
that the parties agree an appropriate timetable for filing evidence such that the hearing will be effective on the date listed;
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(4) |
that positive confirmation is to be given to the Master five working days before the hearing date that the hearing remains effective; and
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(5) |
that, in the event of settlement, the Master be informed of that fact.
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| 5.38 |
The agreed time estimate must take into account not only the hearing time of the application but the time for the Master to give any judgment at the conclusion of the hearing. It should also take into account any further time that may be required for the Master to assess costs, and for any application for permission to appeal.
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| 5.39 |
Failure to comply with the Master's directions given in respect of the listing of an appointment in excess of two hours may result, depending upon the circumstances, in the application not being heard or in adverse costs orders being made.
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| 5.40 |
On any matter of substance, the Master is likely to require a bundle and skeleton arguments to be provided before the hearing, as detailed in paragraphs 7.40 to 7.50 below. Where directions are given in respect of an application to which paragraph 5.36 applies, the provision of a bundle and skeleton arguments should form part of the agreed timetable.
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| 5.41 |
The Masters may also allow applications to be made to them informally. The Masters are normally listed to hear oral applications without notice between 2.15pm and 2.45pm (see paragraph 6.32 below). Such applications should not be used in place of a Part 23 application and care must be taken to notify in appropriate cases parties likely to be affected by any order made on the application. Letters should not be used in place of a Part 23 application, and parties should be particularly careful to keep any correspondence with the Masters to a minimum and to ensure that opposing parties receive copies of any correspondence. Failure in this regard will mean that the Master will refuse to deal with the correspondence. Correspondence should state that it has been copied to the other parties (or should state why it has not been copied). Unless the matter is one of urgency correspondence and any other documents should be sent by post. If, in a case of real urgency, a letter is sent by fax, it should not be followed by a hard copy, unless it contains an original document which needs to be filed. Further guidance is set out in the Chief Master's Practice Note reproduced at Appendix 5.
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| 5.42 |
There is no distinction between term time and vacation so far as business before the Chancery Masters is concerned. They will deal with all types of business throughout the year. When a Master is on holiday, his or her list will normally be taken by a deputy Master.
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Applications for payment out of court
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| 5.43 |
Applications for payment out of money held in court under paragraph 4.2 of PD 37 (for example, where money has been paid into court following compulsory purchase or repossession of property) must be made by Part 23 Application Notice (Form N244). The required documents should be sent to Room TM5.04. The following must be included:
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(1) |
the reasons why the payment should be made (in Part C of the application notice)
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(2) |
any relevant documents such as birth, marriage or death certificate, title deeds etc. (exhibited to the application notice)
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(3) |
a statement whether or not anyone else has any claim to the money (in the Statement of Truth)
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(4) |
bank details, ie the name and address of the relevant bank/building society branch, its Sort Code, and the Account Title and Number
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(5) |
the Court fee of £50.
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| 5.44 |
If there is a dispute as to entitlement to money in court, the Master may order the matter to proceed by Part 8 claim (see paragraph 2.13 above). In all other cases the Master will consider the file without a hearing and make an order for payment.
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