Part 4
Applications to Court
March 2001
(Amended December 2010)
In the course of the official receiver's administration of a case, applications may need to be made to the court to obtain the court’s authority to pursue a particular course of action. Some of these applications will need to be supported by a report. The legislation gives specific guidance on the content of reports for some applications. Most of the common applications made by the official receiver are dealt with in separate chapters of this manual (e.g. application for discharge - Chapter 22 Discharge From Bankruptcy, application for income payments order - Chapter 31.7 Income payments agreements and income payment orders) and reference should be made to these chapters where appropriate. This part of the chapter gives general guidance on how applications to court should be made and the information that should be contained in the report.
Rules 7.1 - 7.10 deal with the practice and procedure on all applications to the court, whether in corporate or individual insolvency, except for a petition under the Insolvency Act 1986 for;
The Insolvency (Amendment) Rules 2010 (IAR) removed the distinction made between types of application to court and provided one single form of application to be used in all cases regardless of the nature of the application [Note 2].
19.23 Form and content of application
Each application to court must be in writing and shall state [Note 3] -
Every application must be authenticated by the applicant, if he/she is acting in person, or on his/her behalf by his/her solicitor [Note 4].
The statutory form 7.1A (see paragraph 19.22) provides the basis for any application to court. Depending on the nature of the application, the official receiver may need to support the application by a report setting out the background and relevant facts to the case and details as to why the application is being made, etc.
19.24 Filing and Service of Application
An application must be filed in court, accompanied by one copy and a number of additional copies for each person to be served with the application [Note 5]. Unless the court otherwise directs (see paragraph 19.28), the applicant shall serve a sealed copy of the application, endorsed with the venue for the hearing, on the respondent(s) named in the application [Note 6]. The court may additionally direct that other persons be served with the application or that notice to any person be dispensed with [Note 7] [Note 8].
The general rule is that applications must be made on notice [Note 9] and should normally be made by filing an application notice stating the order being sought and the reasons for seeking it [Note 10].
An 'application on notice' is an application to the court of which notice is given to the other party or parties. An 'application notice' is the document which is used to issue an application in the court and to serve that application on the other party or parties [Note 11].
The application should normally be supported by written evidence setting out the facts justifying the relief sought. This evidence should also be served on the other party(ies) [Note 12].
Upon filing of an application with the court, the court must fix a venue for the application to be heard unless [Note 13]:
References to the ‘venue’ for any proceeding or attendance before the court, are to the time, date and place for the proceeding or attendance [Note 15].
Unless the provisions of the Act or Rules under which the application is made provide differently, and subject to paragraphs 19.27 and 19.28, the application must be served on the respondent(s) named in the application at least 14 days before the date fixed for the hearing [Note 16].
Where the case is one of urgency, the court may (without prejudice to its general power to extend or abridge time limits (see paragraph 19.120)) hear the application immediately, either with or without notice to, or the attendance of, other parties, or authorise a shorter period of service than 14 days. Any such application may be heard on terms providing for the filing or service of documents, or the carrying out of other formalities, as the court thinks just [Note 17].
19.28 Applications without notice
Where the relevant provisions of the Act or Rules do not require service of the application on, or notice of it to be given to, any person the court may hear the application without notice (formerly ex parte) [Note 18].
An 'application without notice' is an application made by a party to proceedings without giving notice of it to the other party or parties. Some applications do not require service of the application on, or notice to be given to, any person. The court will make orders of an administrative nature or correct obvious mistakes in the absence of the other party. In such cases the court may hear these applications without notice, e.g. amending the description in a bankruptcy order. Other situations where applications may be made without giving notice to the other parties include:
An application made without giving notice, which does not fall within the narrow classes of cases where absence of notice is justified, may be dismissed or adjourned until proper notice has been given.
Where the application is properly made without notice, the court may hear it forthwith, without fixing a venue, or alternatively the court may fix a venue for the application to be heard (see paragraph 19.25) [Note 20].
Applications without notice should normally be made by filing an application notice [Note 2], which must state the order being sought and the reasons for seeking the order. The application should set out the evidence in support of the relief sought and state the reasons why notice was not given. A party affected by an order resulting from an application made without notice may apply to the court to discharge or vary it [Note 21] [Note 22]. The mere fact that the application resulting in the order was made without notice entitles the other party to a further hearing at which the merits of the application are considered in light of the evidence and submissions from both sides. Where an order is made on an application without notice in the Chancery Division a return date for the hearing on notice is frequently included within the order. The final disposal of the application will depend on its merits.
Where an order made on an application without notice is likely to result in the party against whom the order is made suffering loss or damage, the applicant is usually required to give an undertaking as to damages. This undertaking is to the effect that, if it is eventually determined that the order ought not to have been made, the applicant will compensate the respondent for any loss or damage suffered as a result of the order.
If the official receiver makes an application without notice in the absence of the respondent, he/she owes a duty to the court to disclose fully all matters relevant to the application, including any matters which may be adverse to it. Failure to comply with this duty may be grounds to set aside the order. By its nature, a without notice order is essentially a provisional order made by a judge on the basis of evidence and submissions emanating from one side only. There is therefore no basis for making a definitive order and accordingly when the judge reviews his/her provisional order in light of the evidence and argument adduced by the other party, he/she is not hearing an appeal from himself and is no way inhibited from discharging or varying his/her original order [Note 22].
19.30 Hearing of the application
Unless the court otherwise directs, the hearing of an application must be in open court [Note 23] In the county court the application must be made to the district judge in the first instance unless a direction to the contrary has been given or it is not within the district judge’s power to make the order required [Note 24]. The district judge may refer to the judge any matter which he/she thinks should properly be decided by the judge and the judge may either dispose of the matter or refer it back to the district judge with such directions as he/she thinks fit [Note 25].
In the High Court the application must be made to the registrar in the first instance, unless a direction is given to the contrary or it is not within the registrar’s power to make the order required [Note 26]. The registrar has the same discretion as a district judge in that he /she can refer a matter to the judge [Note 27].
19.31 Interim applications generally
Interim (previously known as interlocutory) applications are made in the course of proceedings by the parties to an action [Note 28]. Some interim applications, e.g. to strike out the proceedings, may have the effect of disposing of the proceedings .
Interim hearings are usually heard in public unless there is an exception, such as publicity defeating the object of the hearing or it being impracticable to accommodate the public (which would be the case regarding the rooms used by many district judges).
Common interim applications include:
In proceedings not involving a litigant in person, certain judgments or orders, the terms of which all the parties agree, may be entered and sealed by a court officer without the necessity of a hearing, e.g. the dismissal of proceedings. Normally an application notice is lodged endorsed with the consent of all parties and a draft order [Note 29].
An application for an 'unless order' (sometimes referred to as a peremptory order) is an application for an order of the court requiring somebody to do something, usually within a certain time limit, in default of which certain sanctions will apply, e.g. the striking out of a claim or defence or the debarring of a party from defending proceedings. An "unless" order is only made if there has been a breach of some (other) order or rule.
A 'Tomlin Order' is a form of consent order for settling a dispute which comprises a stay of proceedings on terms contained in a schedule to the order. A Tomlin Order is usually made when proceedings are compromised on terms that are complex or are such that the parties wish to prevent them from becoming public. The schedule to the document is not a public document [Note 30].
Application for an injunction is an application for an order of court requiring a party either to do a specific act or acts (a mandatory or positive injunction) or to refrain from doing a specific act or acts (a prohibitory or negative injunction). Injunctions may be further classified according to the period of time for which the order is to be in force.
A perpetual injunction is a final injunction.
An interim injunction, also known as an interlocutory injunction, is temporary and only stays in force ‘until a named day’ or 'until trial or further order'. It is a provisional measure taken at an earlier stage in the proceedings before the court has had an opportunity to hear and weigh fully the evidence on both sides [Note 31].
Applications for interim injunctions are normally made in private and supported by a witness statement and, in the case of emergency, may be made without notice to other parties.
An quia timet injunction is an order to prevent an wrongful act which is threatened or imminent but has not been committed at the date of the application.
(Amended December 2010)
A freezing injunction [Note 32] (formerly known as a Mareva injunction [Note 33]) is a form of interim injunction whereby a defendant is restrained from removing from the jurisdiction, disposing of or dissipating his/her assets so as to frustrate any judgment which the claimant may obtain against him/her. The following are pre-requisites to a claimant obtaining a freezing injunction:
A freezing injunction may be granted pending the hearing of an application for restoration of an insolvent’s position, with regard to transactions at an undervalue, or transactions defrauding creditors, under sections 238, 339 or 423 of the Insolvency Act 1986 respectively [Note 34]. The initial application for a freezing injunction is usually made without notice to avoid the defendant disposing of the assets before the order is made. A freezing injunction would be heard by a judge in the High Court [Note 35].
19.37 Other court orders
Various other court orders in connection with actions against the property of the insolvent are covered in Chapter 9 - Action against property of the insolvent, Part 6, including attachment of earnings orders, third party debt orders (formerly known as garnishee orders), charging orders, search orders (formerly known as Anton Pillar orders), confiscation orders and forfeiture and restraint orders.
19.38 Application for directions
Applications for directions are a specific type of application to court and should contain the essential information as set out in paragraph 19.23. The official receiver may apply to the court for directions in any matter arising in insolvency proceedings [Note 36]. While this power is very wide-ranging, it should be used only where it is considered that the court’s endorsement of a course of action is required or where the particular circumstances are out of the ordinary. Where the official receiver is seeking the directions of the court in a particular situation, the application should outline the action that the official receiver considers appropriate in the circumstances rather than make an open-ended application. The court should not be presented with an ‘either or’ application for directions nor should the official receiver use an application for directions as a way in which to pass the duty to make a decision to the court.
While applications to the court for directions may be made without notice (see paragraph 19.28), the court will not direct the official receiver to act contrary to the interests of another party if that party has not had the opportunity of being heard. As in all without notice hearings, the official receiver is expected to present all the facts in the matter to the court, including the effect the directions may have on third parties. If the official receiver is aware of third parties who have an interest in the directions he/she is seeking, then notice of the hearing should be served on those parties to give them the opportunity of attending the court hearing and putting their submissions to the court. In this way there can be an effective court hearing at the earliest opportunity. It is possible that at a directions hearing the costs of third parties might be ordered to be paid out of the insolvency estate.
19.39 Application for further information and disclosure
Any party to insolvency proceedings may apply to the court for an order [Note 37] :
a. that any other party:
b. to obtain disclosure from any other party in accordance with CPR Part 31 (disclosure and inspection of documents) [Note 39];
An application under this rule may be made without notice being served on any other party (see paragraph 19.28).
[Back to Part 3 – Commencement of proceedings] [On to Part 4A – Supporting evidence on an application]