Part 17 – Interim Remedies
- tocCivil Procedure Rules
|Contents of this Part|
|Orders for interim remedies||Rule 17.1|
|Time when an order for interim remedy may be made||Rule 17.2|
|How to apply for interim remedy||Rule 17.3|
|Interim injunctions and similar orders||Rule 17.4|
|Interim payments – general procedure||Rule 17.5|
|Interim payments – conditions to be satisfied and matters to be taken into account||Rule 17.6|
|Powers of court where it has made order for interim payment||Rule 17.7|
|Power of court to order early trial||Rule 17.8|
- The court may grant interim remedies including-
- an interim declaration;
- an interim injunction;
- an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub-paragraph (h);
- an order directing a party to prepare and file accounts relating to the dispute;
- an order directing a party to provide information about the location of relevant property or assets or to provide information about relevant property or assets which are or may be the subject of an application for a freezing order;
- an order for a specified fund to be paid into court or otherwise secured where there is a dispute over a party’s right to the fund;
- an order for interim costs;
- an order for the –
- carrying out of an experiment on or with relevant property;
- detention, custody or preservation of relevant property;
- inspection of relevant property;
- payment of income from relevant property until a claim is decided;
- sale of relevant property (including land) which is of a perishable nature or which for any other good reason it is desirable to sell quickly;
- taking of a sample of relevant property;
- an order permitting a party seeking to recover personal property to pay a specified sum of money into court pending the outcome of the proceedings and directing that, if the party does so, the property must be given up to the party;
- an order (referred to as a “freezing order”) restraining a party from –
- dealing with any asset whether located within the jurisdiction or not;
- removing from the jurisdiction assets located there;
- an order to deliver up goods;
- an order (referred to as a “search order”) requiring a party to admit another party to premises for the purpose of preserving evidence, etc.;
- an order (referred to as an “order for interim payment”) under rules 17.5 and 17.6 for payment by a defendant on account of any damages, debt or other sum which the Court may find the defendant liable to pay.
- In paragraph (1) (e) and (h), “relevant property” means property which is the subject of a claim or in relation to which any question may arise on a claim.
- The fact that a particular type of interim remedy is not listed in paragraph (1) does not affect any power that the court may have to grant that remedy.
- The court may grant an interim remedy whether or not there has been a claim for a final remedy of that kind.
- The Chief Justice may issue a practice direction as to the procedure for applying for an interim order including, in particular, interim injunctions, search orders and freezing orders.
Time when an order for interim remedy may be made
- An order for an interim remedy may be made at any time, including –
- after judgment has been given; or
- before a claim has been made.
- Paragraph (1) is subject to any rule which provides otherwise.
- The court may grant an interim remedy before a claim has been made only if –
- the matter is urgent; or
- it is otherwise necessary to do so in the interests of justice.
- Unless the court otherwise orders, a defendant may not apply for any of the orders listed in rule 17.1(1) before filing an acknowledgment of service under Part 9.
- If the court grants an interim remedy before a claim has been issued, it must require an undertaking from the claimant to issue and serve a claim form by a specified date.
- If no claim has been issued the application must be made in accordance with the general rules about applications contained in Part 11.
How to apply for interim remedy
- An application for an interim remedy must be supported by evidence on affidavit unless the court otherwise orders.
- Where, in support of any application under this Rule, it is not practicable to produce evidence on affidavit then the application may be supported by evidence given by witness statement and, in due course, of evidence by affidavit.
- The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.
- The evidence in support of an application made without giving notice must state the reasons why notice has not been given.
Interim injunctions and similar orders
- This rule deals with applications for —
- a freezing order under rule 17.1 (1) (j);
- a search order under rule 17.1(1) (1);
- an interim injunction under rule 17.1(1) (b);
- an order authorising a person to enter any land or building for the purpose of carrying out an order under paragraph (e); and
- an order for the detention, custody or preservation of relevant property under rule 17.1(1) (h) (ii).
- Unless the court otherwise directs, a party applying for an interim order under this rule must undertake to abide by any order as to damages caused by the granting or extension of the order.
- An application for an interim order under this rule may in the first instance be made on 3 days notice to the respondent.
- The court may grant an interim order under this rule on an application made without notice for a period of not more than 28 days (unless any of these Rules permits a longer period) if it is satisfied that –
- in a case of urgency no notice is possible; or
- that to give notice would defeat the purpose of the application.
- On granting an order under paragraph (4) the court must –
- fix a date for further consideration of the application; and
- fix a date (which may be later than the date under paragraph (a)) on which the injunction will terminate unless a further order is made on the further consideration of the application.
- When an order is made under paragraph (4), the applicant must, not less than 7 days before the date fixed for further consideration of the application, serve the respondent personally with –
- the application for an interim order;
- the evidence on affidavit in support of the application;
- any interim order made without notice; and
- notice of the date and time on which the court will further consider the application.
- An application to extend an interim order under this rule must be made on notice to the respondent unless the court otherwise orders.
Interim payments – general procedure
- The claimant may not apply for an order for an interim payment before the end of the period for entering an acknowledgment of service applicable to the defendant against whom the application is made.
- Rule 9.3 sets out the period for filing an acknowledgment of service.
- The claimant may make more than one application for an order for an interim payment even though an earlier application has been refused.
- Notice of an application for an order must be –
- served at least 14 days before the hearing of the application; and
- supported by evidence on affidavit.
- The affidavit must –
- exhibit any documentary evidence relied on by the claimant in support of the application;
- set out the grounds of the application;
- state the claimant’s assessment of the amount of damages or other monetary judgment that are likely to be awarded; and
- if the claim is made under any relevant enactment in respect of injury resulting in death – contain full particulars of the –
- nature of the claim in respect of which the damages are sought to be recovered; and
- person or persons for whom and on whose behalf the claim is brought.
- If the respondent to an application for an interim payment wishes to rely on evidence or the claimant wishes to rely on evidence in reply, that party must –
- file the evidence on affidavit; and
- serve copies on every other party to the application; at least 7 days before the hearing of the application.
- The court may order an interim payment to be made in one sum or by instalments.
Interim payments – conditions to be satisfied and matters to be taken into account
- The court may make an order for an interim payment only if –
- the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;
- the claimant has obtained an order for an account to be taken as between the claimant and the defendant and for judgment for any amount certified due on taking the account;
- the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (including costs) to be assessed;
- (except where paragraph (3) applies), it is satisfied that, if the claim went to trial, the claimant would obtain judgment against the defendant from whom an order for interim payment is sought for a substantial amount of money or for costs; or
- the following conditions are satisfied –
- the claimant is seeking an order for possession of land (whether or not any other order is also being sought); and
- the court is satisfied that, if the case went to trial, the defendant would be held liable (even if the claim for possession fails) to pay the claimant a sum of money for rent or for the defendant’s use and occupation of the land while the claim for possession was pending.
- In addition, in a claim for personal injuries the court may make an order for the interim payment of damages only if the defendant is –
- a person whose means and resources are such as to enable that person to make the interim payment;
- insured in respect of the claim; or
- a public authority.
- In a claim for damages for personal injuries where there are two or more defendants, the court may make an order for the interim payment of damages against any defendant if –
- it is satisfied that, if the claim went to trial, the claimant would obtain judgment for substantial damages against at least one of the defendants (even if the court has not yet determined which of them is liable); and
- paragraph (2) is satisfied in relation to each defendant.
- The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.
- The court must take into account –
- contributory negligence (where applicable); and
- any relevant set-off or counterclaim.
Powers of court where it has made order for interim payment
- If a defendant has been ordered to make an interim payment, or has voluntarily made an interim payment, the court may make an order to adjust the interim payment.
- The court may in particular –
- order a defendant to reimburse, either in whole or in part, another defendant who has made an interim payment;
- order all or part of the interim payment to be repaid; and
- vary or discharge the order for interim payment.
- The court may make an order under this rule –
- on an application by a party made at any time; or
- without an application by a party if it makes the order when it disposes of the claim or any part of it.
Power of court to order early trial
- On hearing any application under this Part, the court may exercise any of its case management powers under Parts 26 and 27 and may in particular give directions for an early trial of the claim or any part of the claim.