Applications

If a litigant needs the court to do something – which the court does by making a Court Order – that is done by making an application.

Applications in UK courts are prepared in a standard form application notice on FORM 244 – Applications in family cases are done on Form D11. 

The standard form application notice is used to:

• give notice to the other side that an application has been made to the court; 
• tells the court and the respondent what the application is about:
  • the order (or directions in some contexts) sought by the applicant
  • the reasons why the application is made, with
  • the evidence to support the application

It’s the way courts manage and organise the business of litigants in litigation.

Application Notices: Purpose

In litigation, you can’t just turn up at a hearing and ask for an order to be made in your favour.

The other parties need to:

• have notice of the application – with a few major exceptions
• have their say and tell the court:
  • whether they believe the Order should be made or not,
  • before the order is made, and
  • at the hearing of the application.

The hearing is when applications are heard by a judge and decided.

Application Notices: Process Overview

Applications are filed and served for a variety of purposes in litigation.

Application Notices are prepared by the applicant along with evidence in support of the application, and then:

• filed with the court, and
• served on the respondent to the application, and
• in a contested application the
  • the respondents file evidence
  • The applicant might file further evidence
• the application is heard and decided by the court.

When parties reach agreement to the terms of the draft Order, the application does not proceed to a hearing and a Consent Order is sent to the court for approval, and the court will then approve it.

Formalities

Form N244 is one of the civil court forms. It’s a fixed form for applications to be made to a court.

They’re used widely in:

• County Court Applications
• High Court Applications,  including in the:
  • Chancery Division
  • Queen’s Bench Division
  • Commercial Court and
  • Technology and Construction Court (aka “the TCC”).

The application notice fee is currently £255.

Appeals

Notice of appeals require a different court form, known as an appellant’s notice. That’s because it’s an appeal from a decision which has been made by the court and not an application.

Application Notices in Context

It can be difficult to understand how applications work without understanding the big picture in litigation.

Courts work in a particular way.

Everything that is done by the court and the parties is to prepare for the main event: the trial.

Once legal proceedings are commenced with issue of the claim form and particulars of claim, the Civil Procedure Rules set out the timings for events to happen, up to the hearing of the first case management conference. 

At the case management conference, case management directions are made to prepare the parties for the trial. It may be that more than one set of case management directions are needed during the litigation to get the parties ready for the trial.

At the trial in litigation:

1. all of the parties and their legal representatives appear before the court
2. the court hears the arguments of the parties as to why they should be successful/win;
3. the court reads the witness statements of the parties
4. the court considers the cross-examination of the witnesses

Examples of Applications

To prepare for the trial, there may be good reason for a party to make an application:

• to vary a court order
• for an extension of time to file a defence
• to set aside court orders
• for a stay of execution of judgment, i.e. a stay of execution

Then there’s more specific applications to:

• amend a statement of case
• dispense with the litigation, with a strike out application:
  • by the defendant to strike out the particulars of claim or
  • the claimant to strike out the defence
• require Further Information and Clarification to be served
• set aside default judgment
• list a case management conference
• fix a pre-trial review
• to maintain confidentiality in confidential information in litigation

Then there are applications to avoid the litigation getting to the trial, such as:

• a default judgment application, to recover legal costs (which isn’t possible on a request for judgment), and
• a summary judgment application

Making an Application: Steps

The common process that applies to applications is this:

The Applicant (which could be the claimant or the defendant) prepares, files (with the court) and serves (on the respondents):

1. 1. The Application Notice: completes a Form N244. The form requires the applicant to:
      1. say what order is being sought
      2. why the order is being sought
      3. specify the person against who the application is made – ie the respondent(s).
         The respondent is usually another party to the proceedings or might (unusually) be a third party
   2. a draft order, which is the order that the applicant is seeking the court to make by making the application
   3. the evidence in support.

 

Draft Orders

There’s no question that it’s best practice to prepare a draft order and file and serve it with the Application Notice. 

A draft order should be attached to an Application when it is filed and served.

It’s better to think of it as required practice.

It lets the Court know what you actually want the court to order.

It provides a check point against the Application Notice too: to make sure you have done what you need to do in the Application Notice to get what you’re asking for.

Pro Tips:

• It’s poor form not to file a draft order with an application (think bad impression).
  The last thing you want to do is leave the court – or the respondent – in any doubt about where the application is headed
• Prepare the draft order before you draft the Application. It forces you think through to where you want to get to, by committing it to writing.
• It also means you have a better opportunity to think through whether it’s realistic to obtain the order that you think you want.

As they say, begin with the end in mind.

Evidence in Support

Section 10 of the standard Form N244 contains space for evidence in support of the application.

More often than not though, the evidence in support is too long or complicated to include in Section 10 of the application notice.

In those cases, a witness statement should be prepared to inform the court of the:

1. background to the application
2. the facts or circumstances relevant to the application. That includes:
   1. what has happened to cause the application to be made or what is likely to happen and the downside
   2. documents which the court may wish to refer to

Relevance

What is relevant depends on:

• what is said in the statements of case
• what has:
  • happened in the litigation up to the date the application is filed and
  • not happened, but should have happened
• the cause of action, whether it’s a breach of contract, misrepresentation, passing off, infringement of intellectual property rights, or some other claim
• the issues in dispute between the parties in the actual litigation, or part of the litigation

Although a particular flavour of solicitor would disagree, the evidence in support is not the place for submissions or arguments. That is the place for the skeleton argument. That comes later, shortly before the hearing.

Response by the Respondent to an Application

After the respondent has been served with the application, they have at least 4 options:

1. 1. negotiate the terms of the order sought:
      1. with a view to either agreeing to the parts of the order sought that can be agreed, leaving parts of the order of the order which can’t be agreed and oppose those parts only;
      2. reach a form of order which both parties can consent to.
   2. oppose the making of the order in the application:
      1. in its entirety or
      2. only those parts which can’t be agreed
   3. not oppose the application.
      The court ends up deciding whether to make the order on the basis of what is said in the application notice and evidence in support.
   4. consent to the order being sought.
      This leads to production of a consent order, which is sent to the court for approval.

(Also, the applicant might wish to withdraw the application. There may be costs consequences of withdrawing an application: the applicant may need to pay the costs of the respondent.)

Application Notices: Consent Orders

When the parties agree between themselves consent to a form of Order, that’s not the end of the story.

The parties do not make Court Orders. Courts do.

It is wholly and solely for the court to make the Order. If there is something that the court does not approve of or is irregular, it will not make the order and:

1. may require the parties to attend hearing
2. make its own Order and allow the parties to make an application to vary the order and probably
3. send the parties into a tail spin

In our experience, the Court will not usually get in the way of parties’ agreement to the terms of an Order, provided it’s appropriate.

That’s why solicitors usually send emails or letters to the court enclosing or attaching a copy of a draft Consent Order requesting the approval of the Court of the draft Order.

While this is not entirely correct, it’s when the Order is sealed that it is finalised and the Order is made. Judges are able to make changes to orders any time up to the time of sealing (actually, it’s when the court makes the Order in Court that the Order is made. The terms of the Order (ie its wording) are just finalised later).

After an order is sealed, an application is required to an order varying the court order, or to appeal the order.

Opposing an Application

Many applications, such draft case management directions are routinely agreed to by parties after a bit of negotiation, finalised and sent to the court for approval.

Others aren’t.

When a party intends to oppose an Application, it takes a number of steps to prepare the hearing of the application.

Evidence in Response

After the application notice, draft order and evidence in support are served, the respondent has the opportunity to:

1. prepare evidence in response (to the evidence in support), and serve the evidence on the Applicant.

Again this is evidence: i.e. one or more witness statements, which is not the place for argument or submissions (that’s for the skeleton argument).

2. not prepare evidence, because it’s not necessary (in the circumstances of the application) to prepare for the hearing.
   Obviously, if the respondent does not file and serve evidence, it will not have any of its own evidence to rely on or refer to at the hearing of the application if it’s needed.

Evidence in Reply

After the evidence in response is served by the respondent, the applicant may choose to prepare evidence in reply.

Evidence in reply is meant to answer factual allegations alleged in the evidence in response, and go no further. When it does go further however, do not be surprised if the respondent prepares and serves a further witness statement to meet any contentious issues arising in the evidence in reply.

Holding Out giving Consent

There’s another factor at play in the lead up to hearings of applications. It may be that the parties are able to:

• agree all of the terms of the application, but
• one party refuses – resolutely – to pay the costs of the other party.

What happens then?

There’s no agreement at all – and no consent has been reached – because the parties have not agreed to all of the terms of the consent order.

There are some standard consequences expected in litigation as a result of making some orders. For instance, a party will be expected to pay the costs of the opposing party when:

• it wishes to amend one of its statements of case: usually the particulars of claim or defence
• applies for certain types of orders, such as:
  • a Norwich Pharmacal Order against a third party to the main litigation
  • a third party disclosure order

It means that a respondent can successfully hold out giving its consent to an order subject to the applicant agreeing to pay their costs.

If the applicant doesn’t consent to pay the costs in those sorts of applications, the court won’t make the order. 

Fixing the Date of the Hearing of the Application

After the evidence has been exchanged, it’s time for the hearing.

The hearing is fixed (ie the date and venue) by the court:

• itself, or
• it may be the type of application where the applicant must liaise with the respondent to obtain (1) the dates that they are unavailable for the hearing, or (2) available for the hearing.
  Those dates are sent to the court.

The (un)available dates will depend on the availability of:

• • the barristers representing each party (it usually is)
  • the solicitors representing each party;
  • representatives of the applicant and/or representatives themselves.

Once the (un)available dates are sent to the court, the court fixes a date for the hearing.

The court then either:

• • tells the applicant of the date, and it is for the applicant to tell the respondent of the date of the hearing, or
  • tells both parties independently of one another in separate notices of hearing.

When at least one party is not legally represented, the court will tell each party itself, with letter enclosing a document entitled …. “Notice of Hearing”.

How the hearing is fixed depends in part on whether the litigation is on the fast-track or multi-track, and the court where the hearing is to take place such as:

• in the High Court: Royal Courts of Justice or Rolls Building in London, or a District Registry
• in the County Court: which County Court hearing centre or building, such as the County Court sitting in Central London, Brighton, or as the case may be.

Once the date for the hearing is fixed, the parties prepare for the hearing.

Prior to the hearing, parties are expected to (legally represented parties at least) exchange and file their respective skeleton arguments.

All things going as they should, they should usually be filed and served by 10.00am the day before the hearing. Don’t be late.

Hearing Bundles for Applications

Serving an application notice and all of the required documents with it is one thing.

It’s quite another to prepare the relevant papers for court for the hearing of the application.

An “application bundle” is one or more lever-arch files which contain the documents which a court is likely to have to refer to decide an application.

However, they’re not lumps of paper thrown together.

Required Documents

Once proceedings have been commenced, it’s the Particulars of Claim, Defence, Reply and any Further Information and Clarification which define the disputes between the parties.

They usually contribute to the overarching context of an application.

Likewise, when there is a counterclaim.

In our experience, rarely would it be appropriate not to include the statements of case in an Application Bundle.

Other documents too may be relevant to any particular application. You just can’t say what should be included without knowing the story of the litigation and what is intended to be achieved by the application.

Bundles don’t just include court documents. It might include correspondence between the parties.

More on this below. 

Contents of Hearing Bundles

For these reasons, the documentation that is needed for an application bundle can get voluminous.

If each party serves evidence as they are entitled to do, there will be at least 5 documents for the application bundle:

1. the Application Notice
2. the Draft Order
3. at least:
   1. one witness statement in support;
   2. one witness statement in response;
   3. one witness statement in reply;

(Skeleton arguments aren’t included in application bundles. They’re filed separately)

Each witness statements might also an exhibit or more than one exhibit.

There may also be inter partes correspondence (that’s not a typo) relevant to the application.

Without Prejudice material

Without prejudice letters and emails, or without prejudice save as to costs communications, are never included in hearing bundles unless that privilege has unambiguously been waived, doesn’t apply or some special circumstances exist (such as without prejudice save as to costs correspondence at a costs hearing).

 Structure of a Hearing Bundle

It all needs to be prepared into what is known as a hearing bundle which, when it’s done properly:

• will be in one or more lever-arch folders;
• each document will be behind a separate numbered tab, unless it makes sense not to (which is rare)

each page in the entire bundle will be numbered consecutively from front to back, at the bottom right-hand corner of each page

The bundle also needs to be:

• indexed, and the index inserted at the front – first page – of each lever-arch folder
• each volume of the bundle is labelled

It’s usually the Applicant’s responsibility to:

• prepare the hearing bundle
• file it
• serve it,

in time for the hearing. The latest an application is filed and served at by 10.00am the day before the hearing. In most courts though, it’s more.

Example: Index to Application Hearing Bundle

Here’s an example of an Index to an Application Bundle. You can see how the documents are broken up into groups. The “Tab” column is a reference to the tab numbered that the document is found behind.

With this example index, we probably wouldn’t paginate each page of the application bundle if each document has its own internal pagination. That’s because each document can be found easily by reference to a tab number, and then the page of the document behind the tab.

If there is more than one lever-arch file, the index and the lever-arch files should be labelled along the lines of “Volume 1 of 4”, “Volume 2 of 4” … and so on.

Why Bother?

Firstly, it’s mandatory, unless there very few (and short) documents – think under 5. 

Properly constructed hearing bundles make judges’ and advocates’ lives easier.

With many documents, it’s always easier to:

• refer to a Tab number in a folder than a page number;
• refer to a page number in a folder than a title of a document (within dozens or 100s of pages)
• the skeleton arguments can refer to tab numbers and page numbers

What’s more, it’s expected.

The Application Bundle must be:

• filed, with
• one copy served on each of the respondents and
• one copy for the applicant.

Each copy of the bundle must be identical. Everyone should be looking at the same version of all of the documents.

Once the evidence has been exchanged and the application bundle filed and served, the parties are ready for the hearing of the application.

Hearings of Applications

They’re a bit like a mini-trial.

At the hearing of the application, either:

• the legal representatives of the parties appear before the Court.
• a litigant is person appears themselves if they are not legal represented in the litigation.

What does the Judge know?

Before the hearing, the judge hearing the case will usually have read the most important documents in the hearing bundle, that is:

1. the Application Notice
2. the draft Order
3. the skeleton arguments, taking careful note of the time estimate in the skeleton argument
4. the evidence:
   1. if it’s brief all of it
   2. if it’s voluminous, have a vague idea about what it says. See below.

So, by the time the hearing starts, the judge has a good idea what each party is likely to be arguing at the hearing in support of the application and against it.

Also:

• It’s unrealistic to expect a judge to know very single last thing that might have happened in the litigation.
• There’s good reason for that. Judges only get involved in cases when there’s an application.
• The judge is only interested in the issues raised in the application which is before them.
• Previous applications and how they turned out are ancient history.

If the evidence in the hearing bundle is of significant volume, it’s unlikely that the judge would have read all of it in advance of the hearing. It may be that the judge has several application hearings that day, and this one is just one of them.

So when the judge isn’t across the history of the case, you shouldn’t be surprised. It’s not their business to know, unless it is relevant to the application to be decided. That’s rare.

Analogy

One way to think about it is this.

You take a car to your mechanic to get something fixed. The mechanic has 10 cars to service in the day. 

You’re the fifth in the mechanic’s list.

The mechanic wants to know the minimum they need to know to get the job done – which is in the application notice job sheet. There’s lots of paper supplied with each job sheet.

The mechanic doesn’t know anything about the history of the litigation car unless it’s in the hearing bundle logbook. And they’re not too concerned either, because they’re got another 9 cars to service that day.

There are some notes in the logbook where you talk about the background history of the litigation car and what the problem to be fixed to prepare for the trial long drive into the country that is due to take place in the near future.

You had your own skeleton argument thoughts as to why the evidence separate entries in the logbook justify the order being made work being done. 

The mechanic might decide to grant the order do the work, or may arrive at the conclusion that the order work is not justified for the problem. In fact, the mechanic might decide to do their own thing entirely to fix the problem.

The mechanic might decide that you’re wrong in thinking that what you’re asking for should be done. If you are wrong, the mechanic won’t make the order do the work. After all, the Civil Procedure Rules and case law company manual might say the mechanic needs to do something different, or nothing at all.

The mechanic gets the final say.

If you don’t like the decision of the mechanic, you need to appeal it to a higher court go through the formal grievance process to the mechanic’s manager. And they’re even harder to talk to: they don’t like interfering with decisions made by their mechanics. But they will if the mechanic is plainly wrong in what they decide.

 

Limited Purpose of Skeleton Arguments

Courts require oral submissions in open court to decide cases.

Skeleton arguments:

• are not submissions or arguments made in open court. It’s only an introduction to what the parties might say at the hearing, in open court
• do not replace oral submissions

It’s for the person advocating the party’s case to persuade the judge that the order sought by the application notice should be made or not made (as the case may be).

It’s the oral arguments – submissions that count at the hearing.

If that means taking the judge through the relevant evidence (ie witness statements and perhaps correspondence), that is the job of the advocate.

So it’s the advocate’s job to:

1. make it known
2. to the Judge
3. in the hearing
4. with oral submissions
5. why the Order sought by the Applicant
6. should be:
   1. made; or
   2. not made.
7. and why their case is to be preferred over the case of their opponent (ie the other advocate)

In Court

In the hearing of applications (and the trial for that matter):

• the claimant sits on the right-hand side of the court as you face the judge.
  This is because that is the left-hand side of the judge.
  All the judge needs to do is work from left to right to hear the claimant and defendant in order.

This is the case, whether the claimant is the applicant or the respondent

• The applicant speaks first: it is the applicant’s application.
• A suitable starting point at the beginning of the hearing for the applicant might be:

“This is the hearing of the Application dated [date] for an order that […], which was made by the [Claimant / Defendant]”

Order of Submissions

When the applicant makes submissions in hearings of applications:

• the respondent will get its chance to respond
• after the respondent finishes its response, the applicant gets a chance to answer.

In hearings, sometimes it’s not so obvious that you:

• Don’t interrupt anyone
• Don’t try to talk over anyone
• If there’s two people speaking at once, stop talking. You’ll get your chance.
• When the judge looks at you and doesn’t say anything, they’re expecting you to say something.
  If you get stuck or don’t know what the judge is expecting you to say, you could say, “How may I be of assistance to the Court?”

End of the Hearing

At the end of the hearing of the application, the judge will usually pronounce judgment (give reasons for the decision) and:

1. make an Order in the form of the draft Order, or something similar to it if the applicant is successful.
   In this case, the Applicant has won and the respondent has lost; or

2. dismiss the Application, in which case the Applicant has lost and the Respondent has won.

The application will either be:

• dismissed;
• an order made for the orders sought in the application.

There’s no guarantee that the court will make the order in precisely the same form as that requested in the draft Order.

Order for Costs

Then, the court will decide the question of costs.

That is, the Court will decide which party should pay the costs of the other party.

Awards of costs are usually made to “follow the event”.

That is, whichever party has an order made against them will be ordered to pay the costs of the party that did not.

Subject to a whole series of qualifications, the court is likely to order the unsuccessful party to pay the successful party between 50% to 80% of the costs incurred by the successful party:

1. preparing the Application and
2. appearing at the hearing.

The hearing would then end.

Closing Remarks / Notes

All court applications should be commenced with the N244 Application Form.

With a few major exceptions, applications are there to assist the parties prepare – in one way or another – for a singular event: the trial in commercial litigation.

After judgment at the trial, the general rule is that applications for enforcement of judgments still need to be served. There are specific exceptions set out in the CPR when applications may be made without notice to the respondent.

A court is not about to make an order that is not requested in the Application Notice, or consequential upon what is in the application notice.

For example, in a strike out application, the court may not strike out the statement of case sought by the Application Notice and draft Order. But it might require the respondent to file and serve an amended statement of case which rectifies the problem which prompted the Application Notice in the first place.