Interim Applications (Motions)
| Author | Peter Lyons |
| Pages | 61-71 |
(Motions)
Interim applications, which are called motions in some countries, are a vital part of a young advocate’s training. They used to be called interlocutory applications, ‘interlocutory’ meaning a dialogue or conversation. ‘To interloct’ is to interrupt someone speaking.
In civil cases, they take place on an application being made to the court and can occur at any time up to the day of the trial.
In a lot of cases they are used for court housekeeping. These sorts of applications are summary judgment, strike out, applications for specific disclosure, extensions of time and so forth.
In England, the court uses its case management powers to further the ‘overriding objective’ in Part 1 of the Civil Procedure Rules.
The whole thrust of Part 1 is that the court, the parties and their representatives must reduce the expense of proceedings by defining and narrowing the issues, avoiding unnecessary steps and delay and allocating a proportionate share of the court’s resources to the cases which deserve it.
Interim applications may be heard by a senior judge, especially in complex cases, but they are generally heard by a master, district or part-time judge. They are best recognised by the fact that most applications take no more than 30 minutes to hear and rarely take more than a day.
There is a lot of procedural rubbish talked about what you can and cannot say in an interim application. A lot of law schools teach it as a tick-box exercise, as if the role of the advocate is reduced to that of a person applying to the council for a parking permit.
Arbitration lawyers are frequently faced with procedural problems such as another party dragging its feet or being uncooperative.
In making an application to the arbitration panel for an interim measure, you must be acutely aware of any powers which appear in the arbitration agreement or relevant applicable legislation.
You should also read the International Arbitration Practice Guidelines, particularly the sections on Interim Measures and Challenges to
62 Advocacy: A Practical Guide
Jurisdiction. These helpful notes appear on the website of the Chartered Institute of Arbitrators.
Remember, the decision-maker is bound by the rules, so you must pitch your application according to the rules.
If you do not, you are wasting your breath, the decision-maker’s time and your client’s money.
1 Preparing the submission
The court will always be assisted by a thoroughly prepared advocate who knows what she wants and knows how to get it. In other words, a credible advocate.
Let us begin with a little psychology. Judges who hear interim applications are often very busy. There are 10 or more cases in the list. The judge is faced with a number of problems.
We forget that judges are also human beings. Some of them might have had an argument with their partner on the way to court. They might have found out that their daughter is seeing someone they don’t like or a colleague has rung in sick and they must take over his list.
The last thing the judges want to see is an unprepared and disorganised advocate in their courtroom saying ‘I don’t know Madam. I was only given this file half an hour ago.’
I did that once. Never again. It was in the Federal Court before a lovely old judge called Mr Justice Northrop. He said calmly but witheringly, ‘The court is entitled to expect that once counsel gets to his feet he knows all about his brief.’
It was said in front of two of our trainees. As I left the building I said, ‘I hope you learned something. That’s exactly how you don’t do it.’
So let us talk about preparation. You must know the file or brief backwards. If the procedural history is complicated, make a chronology. If you think it will assist the court, make a copy for the judge, but whatever you do, make sure your opponent agrees with its contents first.
Judges hate it when counsel proudly produces a chronology only to find out that opposing counsel disputes things in it or, worse, has not seen it.
1.1 Structure
As you prepare your submission, think about what will be attractive to the judge at the outset. Put your best foot forward. That is when the judge is paying the most attention.
Narrow your submissions down to one, two or three points. There’s nothing worse than an advocate who says, ‘I have 17 submissions to make.’ The judicial heart sinks.
Ask yourself, ‘What is the judge looking for?’, ‘What does she need in order to make the order I want?’, ‘What facts does she need and what law?’
Then ask yourself, ‘Will it further the overriding objective
1.2 Know the facts
You must know your client’s story backwards. This is not so that you can tell the court the full story, for that would be foolish. It is in case your opponent mistakes the facts or the...
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