Part 11 – General Rules about Applications for Court Orders

Scope of this Part        

11.1

1. This Part deals with applications for court orders made before, during or after the course of proceedings.

Applicants and respondents

11.2

1. In this Part –
   • “applicant” means a person who seeks a court order by making an application;
   • “respondent” means –
     1. the person against whom the order is sought and any other person on whom the applicant considers it just to serve the application; and
     2. any other person whom the court directs is to be served with the application.

Applications to be dealt with at case management conference

11.3

1. So far as is practicable all applications relating to pending proceedings must be listed for hearing at a case management conference or pre-trial review.
2. If an application is made which could have been dealt with at a case management conference or pre-trial review the court must order the applicant to pay the costs of the application unless there are special circumstances.

Time when application is made

11.4

1. If an application must be made within a specified period, it is so made if it is received by the court office or made orally to the court within that period.

Where to make application

11.5

1. The general rule is that an application must be made to the court office where the claim was issued.
2. If the claim has been transferred to another court office the application must be made to that court office.
3. An application made before a claim has been issued must be made to the court office where it is likely that the claim to which the application relates will be made.

Application to be in writing

11.6

1. The general rule is that an application must be in writing in Form 6.
2. An application may be made orally if –
   1. the court dispenses with the requirement for the application to be made in writing; or
   2. this is permitted by a rule or practice direction.
      • What application must include

11.7

1. An application must state –
   1. briefly, the grounds on which the applicant is seeking the order; and
   2. what order the applicant is seeking.
2. The applicant must file with the application or not less than 3 days before the hearing of the application a draft of the order sought and serve a copy on all respondents to whom notice is given.
3. If the application is made without notice, the draft order must be filed with the application.

Notice of application and evidence in support

11.8

1. The general rule is that the applicant must give notice of the applica­tion to each respondent.
2. An applicant may make an application without giving notice if this is permitted by a –
   1. practice direction;
   2. or rule.
3. The applicant need not give evidence in support of an application unless it is required by a –
   1. court order;
   2. practice direction; or
   3. rule.
4. Notice of the application must be included in the form used to make the application.

Evidence in support of application

11.9

1. Evidence in support of an application must be contained in an affidavit unless a —
   1. court order;
   2. practice direction; or
   3. rule; otherwise provides.
      • Part 30 deals with affidavit evidence.

Contents of notice of application

11.10

1. The notice must state the date, time and place when the application is to be heard.
2. If there is not going to be a hearing but notice of the application is required, the notice must state how the court will deal with the application.
   • Rule 11.14 sets out the circumstances in which there may not be a hearing.

Service of notice of application

11.11

1. The general rule is that a notice of an application must be served –
   1. as soon as practicable after the day on which it is issued; and
   2. at least 7 days before the court is to deal with the application.
2. The period in paragraph (1) (b) does not apply if any rule or practice direction specifies some other period for service.
3. If –
   1. notice of an application has been given; but
   2. the period of notice is shorter than the period required; the court may nevertheless direct that, in all the circumstances of the case, sufficient notice has been given and may accordingly deal with the application.
4. The notice must be accompanied by –
   1. a copy of any draft order which the applicant has attached to the application; and
   2. any evidence in support.
5. The notice must be served in accordance with Part 6 unless any 5 respondent is not a party, in which case the notice must be served in accordance with Part 5.

Powers of court in relation to conduct of application

11.12

1. The court may –
   1. issue a witness summons requiring a party or other person to attend the court on the hearing of the application;
   2. question any party or witness at the hearing; and
   3. require a party to produce documents or things at the hearing.
2. The court may question a party or witness –
   1. by putting written questions and asking the witness to give written answers; or
   2. orally.
3. Any party may then cross-examine the witness.
4. The court may exercise any power which it might exercise at a case management conference.

Consequence of not asking for order in application

11.13

1. An applicant may not ask at any hearing for an order which was not sought in the application unless the court gives permission.

Applications which may be dealt with without hearing

11.14

1. The court may deal with an application without a hearing if –
   1. no notice of the application is required;
   2. the court considers that the application can be dealt with over the telephone or by other means of communication;
   3. the court does not consider that a hearing would be appropriate;
   4. the parties agree; or
   5. the parties have agreed to the terms of an order –
      1. which does not come within rule 27.8(1); and
      2. the application (or a copy of the application) is signed by the legal practitioners for all parties to the application.
         • Rules 2.7(3) and (4) contain powers to enable the court to deal with applications by electronic means.
         • Rule 42.7 deals with consent orders.

Service of application where order made on application made without notice

11.15

1. After the court has disposed of an application made without notice, the applicant must serve a copy of the application and any evidence in support on all other parties.

Applications to set aside or vary order made on application made without notice         

11.16

1. A respondent to whom notice of an application was not given may apply to the court for any order made on the application to be set aside or varied and for the application to be dealt with again.
2. A respondent must make such an application not more than 14 days after the date on which the order was served on the respondent.
3. An order made on an application of which notice was not given must contain a statement telling the respondent of the right to make an application under this rule.

 Power of the court to proceed in absence of party

11.17

1. If the applicant or any person on whom the notice of application has been served fails to attend the hearing of the application, the court may proceed in the absence of that party.

Application to set aside order made in absence of party

11.18

1. A party who was not present when an order was made may apply to set aside or vary the order.
2. The application must be made not more than 14 days after the date on which the order was served on the applicant.
3. The application to set aside the order must be supported by evidence on affidavit showing –
   1. a good reason for failing to attend the hearing; and
   2. that it is likely that had the applicant attended some other order might have been made.