The cost of interim procedural applications

Civil proceedings, whether in a court or tribunal, typically start with pleadings, where each side sets out succinctly, in documents drafted by each side's barrister, what the party claims has happened and what legal remedy is sought (e.g. payment of money or possession of land) and why. The culmination of the proceedings is a trial at which a judge will consider the evidence (both documents and witness evidence) and, after hearing arguments from each side's barrister, decide who is entitled to win the case.

Between the pleadings at the start, and the trial at the end, there are a number of stages which each party must complete by deadlines. These typically include disclosing relevant documents and exchanging witness statements. These stages can be completed by the parties without any involvement by the court or tribunal but sometimes there is a dispute about some aspect of the procedure and one party makes an "interim application" asking a judge to make a ruling on some procedural matter. For example if one party wants a deadline to be extended and the other party does not agree the first party may make an interim application for an extension. The rules in some courts and tribunals do not allow deadlines to be extended automatically by agreement between the parties and in that case an interim application would need to be made even if the other party has no objection, but most interim applications are only necessary if there is disagreement. The rules may require certain particulars to be provided at certain stages. A party which believes that insufficiently detailed particulars have been given by the other party will first ask the other party to provide the information and an interim application is only necessary if the other party refuses to provide the information voluntarily.

In tribunals the usual method of making an application is for a party to write to the tribunal, with a copy to the other party, requesting the tribunal to make a particular order and giving the reason why the party believes that the tribunal should do this. The other party then has a limited time to write to the tribunal if they wish to object, and the tribunal will then make a decision "on the papers" - i.e. without any hearing taking place.

Courts do sometimes decide interim applications "on the papers" without any hearing but usually the courts treat an interim application as a "mini-court case" and hold a hearing at which each side's barrister will argue for or against the order being made and the court will then making a decision. Usually the court will order the loser of the interim application to pay the other side's legal costs of the interim application. This is irrespective of which side goes on to win in the end at the eventual trial. The courts expect a party, before making an interim application, to write to the other party and ask them voluntarily to do whatever is requested before making an interim application to the court for a compulsory order. If this is not done, whilst the court might still make the order sought, it might penalise the successful party by ordering them to pay the other party's costs on the ground that the application was made prematurely by the successful party.

The fact that losing an interim application can be costly unfortunately means that sometimes parties engage in gamesmanship. A party may "try their luck" by asking the second party to do something voluntarily, calculating that the second party will not want to risk losing an application and being ordered to pay costs. And even if the second party decides to refuse what it regards as an unreasonable request, calculating that the first party will not apply to the court, or that if they do the court will not grant their application, the second party may still feel that they need to set out in some detail in a letter why they do not regard the request as reasonable. This is out of concern that, if they do not set out their reasons in detail, the court might, if an application is made which is unsuccessful, perhaps still not award the second party their costs on the grounds that the second party could have avoided the application from being made by setting out their reasoning in more detail in correspondence with the first party.

This is one reason why it is generally more difficult to predict the likely cost of court proceedings as compared to tribunal proceedings. Usually tribunal proceedings proceed through the usual steps without any interim applications being necessary and, if any interim applications are made, they are dealt with "on the papers" without greatly adding to overall costs. By contrast interim applications in courts tend to be costly and it can be difficult to predict how many might be made and on whom the cost of any interim application will fall. And this very uncertainty can encourage parties to write detailed letters prior to interim applications being made so that even the mere prospect of an interim application can generate significant cost even if, in the end, no application is actually made.               

This page was lasted updated in Novermber 2019          Disclaimer