2. How are interlocutory applications handled?

2. How are interlocutory applications handled? 

Many applications are made before trial to deal with procedural or interim matters. These are known as interlocutory applications. 

Open hearings in chambers 

Under Practice Direction 25.1, hearings in chambers before masters and judges are generally open to the public and press, unless a specific statutory rule requires a closed hearing. 

Master vs judge jurisdiction 

Most pre-trial procedural applications (e.g., discovery, security for costs, Case Management Summonses) are determined by a master in chambers.  

However, under Order 32, rule 11(1)(d) of the Rules of the High Court (Cap. 4A) (“RHC”) or Order 32, rule 16(1)(d) the Rules of the District Court (Cap. 336H) (“RDC”), a master has no jurisdiction to grant a contested interlocutory injunction (unless by consent of the parties or ancillary to a charging order or receiver). Applications for contested prohibitory/mandatory injunctions, Mareva injunctions or Anton Piller orders must be heard directly by a judge in chambers. 

Applications before a master: the “three-minute list” 

Most interlocutory summonses before a master are first placed in the chambers list. This list is commonly known as the “three-minute list”. 

Despite the name, the hearing is not intended for detailed argument. It is mainly a short procedural hearing at which the master considers how the application should be dealt with. 

Before the hearing, the master will usually have read the papers. At the hearing, the master may: 

• grant the order immediately, if the application is uncontested or straightforward; 
• direct that the application be decided on the papers, without an oral hearing; or 
• give directions and adjourn the matter to a fixed-time hearing before a master or judge for substantive argument, if the application is contested and requires detailed argument on the legal and factual merits. 

The hearing is normally fast-moving. The master will control the proceedings closely. If there is no opposition, the order may be made at once. If only brief argument is needed, the master may hear it immediately. If the matter requires substantial argument, the summons will usually be adjourned to a longer hearing with a proper time estimate. 

Disposal on the papers 

Under Order 32, rule 11A of the RHC or Order 32, rule 16A of the RDC, masters in the Court of First Instance and judges and masters in the District Court may decide suitable interlocutory applications on written materials without requiring the parties to attend an oral hearing. 

Masters frequently use this procedure for applications that can be fairly resolved from the papers. Examples may include applications for security for costs, or interim payments. 

Where the court directs disposal on the papers, the parties must ensure that their evidence and written submissions are complete, clear and filed on time. The order will then be made on the relevant order date without oral argument. 

Rights of audience 

Because three-minute list hearings are procedural call-overs, Practice Direction 14.1 permits certain non-barrister representatives to appear before a Master. In addition to solicitors and barristers, trainee solicitors and qualified legal executives (or holders of approved legal diplomas/degrees) have rights of audience on uncontested applications or three-minute call-overs. (Note: Trainee solicitors in the final 12 months of their contract additionally enjoy rights of audience on contested Order 14 summary judgment hearings listed for up to 15 minutes). 

Applications before a judge: injunctions and urgent interim relief 

Applications for interlocutory injunctions and urgent interim relief before a judge are generally governed by Order 29 of the RHC or RDC, Practice Direction 5.3 (“PD 5.3”) and Practice Direction 11.1. 

Inter partes injunction summonses are usually listed before the designated summons judge on Friday mornings at 10:00 am. This is commonly referred to as “summons day”. The list also includes “return date” hearings, where an injunction has previously been granted without notice and the matter returns to court for the other party to be heard. 

Because the summons judge often has a heavy list, contested applications requiring lengthy argument will not usually be fully argued on summons day. Instead, the judge may adjourn the application to a fixed date for a full hearing. 

When doing so, the judge will normally give directions for the further conduct of the application. These may include a timetable for filing evidence, exchanging skeleton arguments and lodging hearing bundles. 

If protection is needed before the adjourned hearing, the judge may also consider whether to grant an interim-interim injunction, or whether to accept undertakings from the defendant until the matter can be fully heard. 

Adjournments of interlocutory applications 

Adjournments are closely controlled by the court. The purpose is to prevent avoidable delay and to ensure that parties are ready to proceed when their applications are listed. 

An interlocutory application may be adjourned in several ways. 

(i) Adjournment to a fixed date 

The court may adjourn the summons to a specific date and time for substantive argument. This will usually happen where the application needs more time than is available in the original list. 

(ii) Adjournment generally 

The court may adjourn the summons generally, also known as an adjournment sine die. This means that no new hearing date is fixed at that stage. 

Either party may later restore the summons to the list by giving two clear days’ notice to the other side. 

(iii) Standing over to trial 

Sometimes, an interlocutory application depends on disputed facts which cannot fairly be resolved on affidavit evidence alone. In that situation, the court may order that the application “stand over to trial”. 

This means that the issue will be dealt with at the trial, when oral evidence and cross-examination may be available. The interlocutory application is therefore effectively absorbed into the final determination of the action. 

Consent adjournments and agreed directions 

Practice Direction 5.4 (PD 5.4”) sets out procedures where parties agree on directions or on the disposal of an application before the hearing. 

If the parties reach agreement before a master’s hearing, they should send a signed consent summons or consent order to the master’s clerk no later than 2:30 pm on the day before the hearing. This allows the hearing to be vacated and avoids unnecessary attendance. 

If agreement is reached only on the morning of the hearing, the parties may provide a signed, self-contained consent order to the Master’s clerk at least 15 minutes before the hearing. The matter may then be dealt with ahead of the contested list to save waiting time. 

Where a matter has been fixed for a special chambers hearing before a master but the parties wish to adjourn it to be heard by a judge instead, an application should be made at least 14 days in advance. The parties must give cogent reasons. If they fail to do so, the court may refuse to allow the costs caused by the adjournment. 

Time estimates and preparation for substantive hearings 

The master or judge at the call-over hearing may adjourn the application for substantive argument. Parties must give realistic time estimates for substantive hearings.  

The required preparation for the substantive hearing depends on the length of the hearing. 

(i) General interlocutory summonses & master hearings 

For shorter applications of less than 30 minutes, skeleton arguments are usually brief. They are commonly limited to about two pages. The applicant’s skeleton argument should generally be lodged 72 hours before the hearing, and the respondent’s skeleton argument 48 hours before the hearing. 

For hearings estimated to last 30 minutes or more, more detailed preparation is required. The parties should prepare proper paginated court bundles. They may also need to provide a chronology, a dramatis personae and skeleton arguments. The applicant’s documents should generally be filed at least 72 hours before the hearing, and the respondent’s documents at least 48 hours before the hearing. 

Accurate time estimates are important. If the estimate is unrealistic and the hearing cannot proceed properly, the court may adjourn the matter and make an adverse costs order. 

For more information, please refer to PD 5.4. 

(ii) Interlocutory injunctions on summons day 

The court bundles must be served and lodged not less than 24 hours before the hearing. Where possible, they should be served and lodged 48 hours before the hearing. 

The applicant’s skeleton argument must be lodged by 9:30 am, two days before the hearing. 

The respondent’s skeleton argument must be lodged no later than 2:30 pm on the day before the hearing. 

Parties should comply with these deadlines carefully. Failure to lodge bundles or skeleton arguments on time may result in the application being adjourned, or in adverse costs orders. 

For more information, please refer to PD 5.3. 

Costs consequences of unnecessary adjournments 

The court expects parties to comply with directions and filing deadlines. Since the Civil Justice Reform, the courts have been more willing to impose costs sanctions where a party’s default causes an adjournment. 

Examples of default include late filing of affidavits/affirmations, late skeleton arguments, or failure to lodge proper hearing bundles in accordance with PD 5.3 or PD 5.4. 

Where an adjournment is caused by such default, the court may order: 

• costs thrown away to be paid immediately; 
• summary assessment of costs payable forthwith; 
• disallowance of counsel’s fees or solicitors’ costs; or 
• wasted costs against the solicitors personally, where appropriate. 

The general principle is that a party who causes unnecessary delay should bear the financial consequences.