A Practical Guide to International Arbitration in London

Hilary Heilbron QC

Document

APPENDIX D

THE ADMIRALTY & COMMERCIAL COURTS GUIDE

F. Applications

F1 Generally

F1.1

(a) Applications are governed by CPR Part 23 and PD23 as modified by rule 58 and PD58. As a result
- (i) PD23 §§1 and 2.3-2.6 do not apply;
- (ii) PD23 §§2.8 and 2.10 apply only if the proposed (additional) application will not increase the time estimate already given for the hearing for which a date has been fixed; and
- (iii) PD23 §3 is subject in all cases to the judge’s agreeing that the application may proceed without an application notice being served.
(b) An adapted version of practice form N244 (application notice) has been approved for use in the Commercial Court.

F1.2 An application for a consent order must include a draft of the proposed order signed on behalf of all parties to whom it relates: PD58 §14.1. F1.3 The requirement in PD23 §12.1 that a draft order be supplied on disk does not apply in the Commercial Court since orders are generally drawn up by the parties: PD58 §14.2.

Service

F1.4 Application notices are served by the parties, not by the court: PD58 §9.

Evidence

F1.5

(a) Particular attention is drawn to PD23 §9.1 which points out that even where no specific requirement for evidence is set out in the Rules or Practice Directions the court will in practice often need to be satisfied by evidence of the facts that are relied on in support of, or in opposition to, the application.
(b) Where convenient the written evidence relied on in support of an application may be included in the application notice, which may be lengthened for this purpose.

Time for service of evidence

F1.6 The time allowed for the service of evidence in relation to applications is governed by PD58 §13.

Hearings

F1.7

(a) Applications (other than arbitration applications) will be heard in public in accordance with rule 39.2, save where otherwise ordered.
(b) With certain exceptions, arbitration applications will normally be heard in private: rule 62.10(3). See section O.
(c) An application without notice for a freezing injunction or a search order will normally be heard in private.

F1.8 Parties should pay particular attention to PD23 §2.9 which warns of the need to anticipate the court’s wish to review the conduct of the case and give further management directions. The parties should be ready to give the court their assistance and should be able to answer any questions that the court may ask for this purpose.F1.9 PD23 §§6.1-6.5 and §7 deal with the hearing of applications by telephone (other than an urgent application out of court hours) and the hearing of applications using video-conferencing facilities. These methods may be considered when an application needs to be made before a particular Commercial Judge who is currently on circuit. In most other cases applications are more conveniently dealt with in person.

F2 Applications without notice

F2.1 All applications should be made on notice, even if that notice has to be short, unless

(i) any rule or Practice Direction provides that the application may be made without notice; or
(ii) there are good reasons for making the application without notice, for example, because notice would or might defeat the object of the application.

F2.2 Where an application without notice does not involve the giving of undertakings to the court, it will normally be made and dealt with on paper, as, for example, applications for permission to serve a claim form out of the jurisdiction, and applications for an extension of time in which to serve a claim form.F2.3 Any application for an interim injunction or similar remedy will require an oral hearing.F2.4

(a) A party wishing to make an application without notice which requires an oral hearing before a judge should contact the Clerk to the Commercial Court at the earliest opportunity.
(b) If a party wishes to make an application without notice at a time when no commercial judge is available he should apply to the Queen’s Bench Judge in Chambers.

F2.5 On all applications without notice it is the duty of the applicant and those representing him to make full and frank disclosure of all matters relevant to the application.F2.6 The papers lodged for the application should include two copies of a draft of the order sought. Save in exceptional circumstances where time does not permit, all the evidence relied upon in support of the application and any other relevant documents must be lodged in advance with the Clerk to the Commercial Court. If the application is urgent, the Clerk to the Commercial Court should be informed of the fact and of the reasons for the urgency. Counsel’s estimate of reading time likely to be required by the court should also be provided.

F3 Expedited applications

F3.1 The Court will expedite the hearing of an application on notice in cases of sufficient urgency and importance.F3.2 Where a party wishes to make an expedited application a request should be made to the Clerk to the Commercial Court on notice to all other parties.

F4 Paper applications

F4.1

(a) Although contested applications are usually best determined at an oral hearing, some applications may be suitable for determination on paper.
(b) Attention is drawn to the provisions of rule 23.8 and PD23 §11. If the applicant considers that the application is suitable for determination on paper, he should ensure before lodging the papers with the court
- (i) that the application notice together with any supporting evidence has been served on the respondent;
- (ii) that the respondent has been allowed the appropriate period of time in which to serve evidence in opposition;
- (iii) that any evidence in reply has been served on the respondent; and
- (iv) that there is included in the papers
  - (A) the written consent of the respondent to the disposal of the application without a hearing; or
  - (B) a statement by the applicant of the grounds on which he seeks to have the application disposed of without a hearing, together with confirmation that a copy has been served on the respondent.
(c) Only in exceptional cases will the court dispose of an application without a hearing in the absence of the respondent’s consent.

F4.2

(a) Certain applications relating to the management of proceedings may conveniently be made in correspondence without issuing an application notice.
(b) It must be clearly understood that such applications are not applications without notice and the applicant must therefore ensure that a copy of the letter making the application is sent to all other parties to the proceedings.
(c) Accordingly, the following procedure should be followed when making an application of this kind:
- (i) the applicant should first ascertain whether the application is opposed by the other parties;
- (ii) if it is, the applicant should apply to the court by letter stating the nature of the order which it seeks and the grounds on which the application is made;
- (iii) a copy of the letter should be sent (by fax, where possible) to all other parties at the same time as it is sent to the court;
- (iv) any other party wishing to make representations should do so by letter within two days (i.e. two clear days) of the date of the applicant’s letter of application. The representations should be sent (by fax, where possible) to the applicant and all other parties at the same time as they are sent to the court;
- (v) the court will advise its decision by letter to the applicant. The applicant must forthwith copy the court’s letter to all other parties, by fax where possible.

F5 Ordinary applications

F5.1 Applications likely to require an oral hearing lasting half a day or less are regarded as “ordinary” applications.F5.2 Ordinary applications will generally be heard on Fridays, but may be heard on other days. Where possible, the Listing Office will have regard to the availability of advocates when fixing hearing dates.F5.3 Many ordinary applications, especially those in the non-Counsel list on Fridays, are very short indeed (e.g. applications to extend time). As in the past, it is likely that many, if not most, of such applications can be heard without evidence and on short (i.e. a few days) notice. The parties should however have in mind what is said in section F1.5(a) above.F5.4

(a) The timetable for ordinary applications is set out in PD58 §13.1 and is as follows:
- (i) evidence in support must be filed and served with the application;
- (ii) evidence in answer must be filed and served within 14 days thereafter;
- (iii) evidence in reply (if any) must be filed and served within 7 days thereafter.
(b) This timetable may be abridged or extended by agreement between the parties provided that any date fixed for the hearing of the application is not affected: PD58 §13.4. In appropriate cases, this timetable may be abridged by the Court.

F5.5 An application bundle (see section F11) must be lodged with the Listing Office by 1 p.m. one clear day before the date fixed for the hearing. The case management bundle will also be required on the hearing; this file will be passed by the Listing Office to the judge. Only where it is essential for the court on the hearing of the ordinary application to see the full version of a statement of case that has been summarised in accordance with section C1.4 above should a copy of that statement of case be lodged for the ordinary application.F5.6 Save in very short and simple cases, skeleton arguments must be provided by all parties. These must be lodged with the Listing Office and served on the advocates for all other parties to the application by 1 p.m. on the day before the date fixed for the hearing (i.e. the immediately preceding day) together with an estimate of the reading time likely to be required by the court. Guidelines on the preparation of skeleton arguments are set out in Part 1 of Appendix 9.F5.7 Thus, for an application estimated for a half day or less and due to be heard on a Friday:

(i) the application bundle must be lodged by 1 p.m. on Wednesday; and
(ii) skeleton arguments must be lodged by 1 p.m. on Thursday.

If, for reasons outside the reasonable control of the advocate a skeleton argument cannot be delivered to the Listing Office by 1 p.m., it should be delivered direct to the clerk of the judge listed to hear the application and in any event not later than 4 p.m. the day before the hearing.

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