Ten ways to give your interlocutory application the very best chances of success

The range of interlocutory applications that are available to either side in litigation is remarkably wide.  The CPR makes provision for striking out claims, parts of claim, witness evidence, sections of witness evidence, further particulars, disclosure at any stage including before and after issue of proceedings and much more.

Unlike in the USA, for example, legal teams in England and Wales appear to be much more reluctant to make applications or even to consider what applications they might make to give them a tactical or procedural advantage in litigation. This is particularly so when it concerns striking out all or part of a statement of case or witness statement.  The prevailing sentiment appears to be that ‘it will all come out in the wash’, or ‘it’s something we can deal with at the settlement discussions’, or ‘the judge will just ignore that bit’.

Whatever the application, here are ten[1] rules (of thumb, anyway) which may not guarantee success but will certainly minimise the risks of failure.

1. Think like the judge

The judge is, unsurprisingly, rarely interested in how this application may assist your client or improve your prospects of success at trial. “If the court refuses this application then our prospects of success are greatly reduced” is unlikely to sway the judge. It certainly does alert your opponent to a key weakness in your case.

The judge is concerned with how granting or refusing the application will affect the way the litigation proceeds  and whether it will make the final determination of the action by the trial judge, more difficult or easier.

2. Address CPR 1

Incredibly, so many interlocutory applications fail to address the key aspects which the court must consider in respect of any application:

• Will granting this application assist the court in meeting the Overriding Objective?
  • Is it proportionate to the likely costs involved?
  • Will it assist the trial judge in dealing with the case justly?
  • How granting the application evens-up the playing field.
  • Why the Application will enable one or both parties to present their best evidence to the trial judge.
  • What potential it may make to the damages outcome if granted (or refused).
  • What alternatives have been considered (and why the application was pursued instead).
  • Why the application is likely to reduce complexity at the trial – or assist the judge in resolving complexity.
  • Why it will result in a fairer outcome.
  • Why granting it may save court resources (or) utilize them more efficiently.

3. Attacking the other side is rarely productive

A busy judge in a packed list may be interested in how awful the other side is. But it’s pretty unlikely. Yes, they have been terrible and yes, you have every right to be irritated.  But don’t imagine the judge will share your irritation, or even care.

Which rule in the CPR has, as one of the criteria to be considered: – “Whether the other party have been a right pain in the bum”?

Exactly.

4. Get Counsel involved early

If you are anticipating counsel arguing the application in due course, it may be a tactically astute decision to get them involved in (i) deciding exactly what you are applying for and (ii) the content of the supporting witness statement (if there is one).  Being instructed close to the hearing, with a  key piece of evidence un-addressed in the supporting statement, is an unhappy place to be for any barrister.

Your counsel, if doing their job, will also identify the sections of the statement and – more importantly – the exhibits – which are surplus to requirements.

If you produce a 15-page statement with an exhibit consisting of fifty pages of emails, don’t be surprised if the judge has pre-read precisely none of it.

5. Give yourself some costs protection

Offering to compromise the application on favourable costs terms ahead of time will either (i) result in your not having to pursue the application at all, or (ii) place you in the very best position when it comes to costs after a contested hearing.

But give yourself some wiggle room and a fall-back position, in case your primary application fails.  For example:

• Unless the claimant does give further and better particulars of the loss of earnings claim as requested, the claim is struck out.

(alternatively)

• The claim be stayed until the claimant does give further and better particulars of the loss of earnings claim as requested.

(alternatively)

• The claimant’s loss of earnings claim is limited to past loss only [without the leave of the trial judge].

A second example:

• The Defence is struck out.

(alternatively)

• The defence is struck out insofar as it denies liability.

(alternatively)

• Paragraphs 3, 4 and 5 of the Defence are struck out.

6. Leave out the law, and the submissions

Tempting though it may be to include case law, extracts from recent decisions and cut n paste sections from the statute, alongside persuasive argument in your witness statement ….

… don’t.

As the hard-bitten cop always said in early TV crime dramas “Just the facts, ma’am, just the facts”

It also makes the statement a lot punchier.

7. Include a chronology

Chronologies are very helpful to the time-pressed judge. Especially within a brief statement.

But many chronologies blunt their potential impact by including:

• lots of dates/events not directly relevant to the application, which makes the chronology too long.
• partisan commentary alongside the key dates.

8. Recognise and address head-on the impact on the other party

You may be partisan; that’s your role as the lawyer.

But we assume the judge is not, and the judge must balance the prejudice to both sides in any decision.

It would be prudent to recognise that there may well be adverse consequences to the other side as a result of making the order you seek.   Simply relying upon even greater adverse consequences to your client may not be sufficient.  Insofar as there may be prejudice to the other side, address how that can that be mitigated, and if so, how.  Perhaps a concession on interest accruing, or an opportunity for the other side to file additional evidence. It shows the judge that you are aware of the role he/she must perform in balancing the interest of both parties.

9. Recognise and address head-on the impact on the litigation more generally

If there is a cost attached to the granting of the Application, address how much it will cost head on.

The judge will be considering the total cost to both sides – not just yours.

A step which costs (say) £50,000, but has a modest impact on likely damages is not likely to be proportionate.

Will the application, if granted, involve additional disclosure or witness evidence?

Will the application make the trial longer?

Will the application impact any trial fixture?

These are all points the other side will raise, so you deal with them first.

Crucially: is it likely to assist with the resolution of the claim without the need for a trial?

10. Consider why you are not making an application?

This may seem like a sightly about-face question to ask yourself.  But it is a valid one.  Given the procedural armoury at your disposal within the CPR (especially the wide- ranging powers in CPR 3), ought you be explaining to your client why you are not making interlocutory applications which may improve the prospects of success.

The court is (nominally) encouraged to involve itself in active case management.  The question to ask yourself if whether you are involved in actively advancing the case  for your client, or whether you are passively going though disclosure, serving witness evidence and expert reports without considering what else you could be doing to gain a strategic tactical advantage in the litigation.

Making interlocutory applications can be expensive.

But coming second in any contested litigation is really expensive.

[1] Maybe 9 and a bit

Article by Colm Nugent