Modelo de clasificación ABC.

Generally

F15.1 (a) Applications for interim injunctions are governed by CPR Part 25.

(b) Applications must be made on notice in accordance with the procedure set out in CPR Part 23 unless there are good reasons for proceeding without notice.

F15.2 A party who wishes to make an application for an interim injunction must give the Clerk to the Commercial Court as much notice as possible.

F15.3 (a) Except when the application is so urgent that there has not been any opportunity to do so, the applicant must issue his claim form and obtain the evidence on which he wishes to rely in support of the application before making the application.

(b) On applications of any weight, and unless the urgency means that this is not possible, the applicant should provide the court at the earliest opportunity with a skeleton argument.

(c) An affidavit, and not a witness statement, is required on an application for a freezing order or a search order: PD25 § 3.1.

Fortification of undertakings

F15.4 (a) Where the applicant for an interim remedy is not able to show sufficient assets within the jurisdiction of the Court to provide substance to the undertakings given,

particularly the undertaking in damages, he may be required to reinforce his undertakings by providing security.

(b) Security will be ordered in such form as the judge decides is appropriate but may, for example, take the form of a payment into court, a bond issued by an insurance company or a first demand guarantee or standby credit issued by a first-class bank. (c) In an appropriate case the judge may order a payment to be made to the applicant’s

solicitors to be held by them as officers of the court pending further order. Sometimes the undertaking of a parent company may be acceptable.

Form of order

F15.5 Standard forms of wording for freezing injunctions and search orders are set out in Appendix 5. The forms have been adapted for use in the Commercial Court. These examples may be modified as appropriate in any particular case. Any modification to the form by an applicant should be expressly referred to the Judge’s attention at the

application hearing.

F15.6 A phrase indicating that an interim remedy is to remain in force until judgment or further order means that it remains in force until the delivery of a final judgment. If an interim remedy continuing after judgment is required, say until judgment has been satisfied, an application to that effect must be made (see further section K1).

F15.7 It is good practice to draft an order for an interim remedy so that it includes a proviso which permits acts which would otherwise be a breach of the order to be done with the written

F. Applications

consent of the solicitor of the other party or parties. This enables the parties to agree in effect to variations (or the discharge) of the order without the necessity of coming back to the court.

Freezing injunctions

F15.8 (a) Freezing injunctions made on an application without notice will provide for a return date, unless the judge otherwise orders: PD25 § 5.1(3). In the usual course, the return date given will be a Friday (unless a date for a case management conference has already been fixed, in which event the return date given will in the usual course be that date).

(b) If, after service or notification of the injunction, one or more of the parties considers that more than 15 minutes will be required to deal with the matter on the return date the Listing Office should be informed forthwith and in any event no later than 4 p.m. on the Wednesday before the Friday fixed as the return date.

(c) If the parties agree, the return date may be postponed to a later date on which all parties will be ready to deal with any substantive issues. In this event, an agreed form of order continuing the injunction to the postponed return date should be submitted for consideration by a judge and if the order is made in the terms submitted there will be no need for the parties to attend on the day originally fixed as the return date.

(d) In such a case the defendant and any other interested party will continue to have liberty to apply to vary or set aside the order.

F15.9 A provision for the defendant to give notice of any application to discharge or vary the order is usually included as a matter of convenience but it is not proper to attempt to fetter the right of the defendant to apply without notice or on short notice if need be.

F15.10 As regards freezing orders in respect of assets outside the jurisdiction, the standard

wording in relation to effects on third parties should normally incorporate wording to enable overseas branches of banks or similar institutions which have offices within the jurisdiction to comply with what they reasonably believe to be their obligations under the laws of the country where the assets are located or under the proper law of the relevant banking or other contract relating to such assets.

F15.11 Any bank or third party served with, notified of or affected by a freezing injunction may apply to the court without notice to any party for directions, or notify the court in writing without notice to any party, in the event that the order affects or may affect the position of the bank or third party under legislation, regulations or procedures aimed to prevent money laundering.

Search orders

F15.12 Attention is drawn to the detailed requirements in respect of search orders set out in PD25 § § 7.1–8.3. The applicant for the search order will normally be required to undertake not to inform any third party of the search order or of the case until after a specified date.

Applications to discharge or vary freezing injunctions and search orders

F15.13 F15.13 Applications to discharge or vary freezing injunctions and search orders are treated as matters of urgency for listing purposes. Those representing applicants for discharge or variation should ascertain before a date is fixed for the hearing whether, having regard to the evidence which they wish to adduce, the claimant would wish to adduce further

F. Applications

avoid the last minute need to vacate a fixed date. In cases of difficulty the matter should be referred to a judge who may be able to suggest temporary solutions pending the hearing.

F15.14 If a freezing injunction or a search order is discharged on an application to discharge or vary, or on the return date, the judge will consider whether it is appropriate that he should assess damages at once and direct immediate payment by the applicant. Where the judge considers that the hearing for the assessment of damages should be postponed to a future date he will give such case management directions as may be appropriate for the

assessment hearing, including, if necessary, disclosure of documents and exchange of witness statements and experts’ reports.

Applications under section 25 of the Civil Jurisdiction and Judgments Act 1982

F15.15 A Part 8 claim form (rather than an application notice: cf. rule 25.4(2)) must be used for an application under section 25 of the Civil Jurisdiction and Judgments Act 1982 (“Interim relief in England and Wales and Northern Ireland in the absence of substantive

proceedings”). The modified Part 8 procedure used in the Commercial Court is referred to at section B4 above.