PRACTICE DIRECTION 23A – APPLICATIONS

This Practice Direction supplements CPR Part 23

Contents of this Practice Direction

TitleNumber
Reference to a judge 
Application notices 
Applications without service of application notice 
Giving notice of an application 
Pre-action applications 
County Court Money Claims CentrePara. 5A.1
Telephone hearings 
InterpretationPara. 6.1
When a hearing is to be conducted by telephonePara. 6.2
Conduct of the telephone hearingPara. 6.9
DocumentsPara. 6.11
Video conferencing 
Note of Proceedings 
Evidence 
Consent orders 
Other applications considered without a hearing 
Applications to stay claim where related criminal proceedingsPara. 11A.1
Miscellaneous 
Costs 

Reference to a judge

1 A Master or District Judge may refer to a judge any matter which he thinks should properly be decided by a judge, and the judge may either dispose of the matter or refer it back to the Master or District Judge.

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Application notices

2.1 An application notice must, in addition to the matters set out in rule 23.6, be signed and include:

(1) the title of the claim,

(2) the reference number of the claim,

(3) the full name of the applicant,

(4) where the applicant is not already a party, his address for service, including a postcode. Postcode information may be obtained from www.royalmail.com or the Royal Mail Address Management Guide, and

(5) either a request for a hearing or a request that the application be dealt with without a hearing.

(Practice Form N244 may be used.)

2.2 On receipt of an application notice containing a request for a hearing the court will notify the applicant of the time and date for the hearing of the application.

2.3 On receipt of an application notice containing a request that the application be dealt with without a hearing, the application notice will be sent to a Master or District Judge so that he may decide whether the application is suitable for consideration without a hearing.

2.4 Where the Master or District Judge agrees that the application is suitable for consideration without a hearing, the court will so inform the applicant and the respondent and may give directions for the filing of evidence. (Rules 23.9 and 23.10 enable a party to apply for an order made without a hearing to be set aside or varied.)

2.5 Where the Master or District Judge does not agree that the application is suitable for consideration without a hearing, the court will notify the applicant and the respondent of the time, date and place for the hearing of the application and may at the same time give directions as to the filing of evidence.

2.6 If the application is intended to be made to a judge, the application notice should so state. In that case, paragraphs 2.3, 2.4 and 2.5 will apply as though references to the Master or District Judge were references to a judge.

2.7 Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.

2.8 Applications should wherever possible be made so that they can be considered at any other hearing for which a date has already been fixed or for which a date is about to be fixed. This is particularly so in relation to case management conferences, allocation and listing hearings and pre-trial reviews fixed by the court.

2.9 The parties must anticipate that at any hearing the court may wish to review the conduct of the case as a whole and give any necessary case management directions. They should be ready to assist the court in doing so and to answer questions the court may ask for this purpose.

2.10 Where a date for a hearing has been fixed and a party wishes to make an application at that hearing but he does not have sufficient time to serve an application notice he should inform the other party and the court (if possible in writing) as soon as he can of the nature of the application and the reason for it. He should then make the application orally at the hearing.

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Applications without service of application notice

3 An application may be made without serving an application notice only:

(1) where there is exceptional urgency,

(2) where the overriding objective is best furthered by doing so,

(3) by consent of all parties,

(4) with the permission of the court,

(5) where paragraph 2.10 above applies, or

(6) where a court order, rule or practice direction permits.

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Giving notice of an application

4.1 Unless the court otherwise directs or paragraph 3 or paragraph 4.1A of this practice direction applies the application notice must be served as soon as practicable after it has been issued and, if there is to be a hearing, at least 3 days before the hearing date (rule 23.7(1)(b)).

4.1A Where there is to be a telephone hearing the application notice must be served as soon as practicable after it has been issued and in any event at least 5 days before the date of the hearing.

4.2 Where an application notice should be served but there is not sufficient time to do so, informal notification of the application should be given unless the circumstances of the application require secrecy.

(Rule 2.8 explains how to calculate periods of time expressed in terms of days.)

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Pre-action applications

5 All applications made before a claim is commenced should be made under Part 23 of the Civil Procedure Rules. Attention is drawn in particular to rule 23.2(4) and (4A).

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County Court Money Claims Centre

5A.1 If the claim is started in the County Court Money Claims Centre, an application mad after a claim has been started must be made to the County Court Money Claims Centre or County Court hearing centre where the claim is being dealt with.

5A.2 A District Judge may—

(a) consider the application without a hearing; or

(b) direct that the application should be transferred to a County Court hearing centre.

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Telephone Hearings

Interpretation

6.1 In this paragraph –

(a) ‘designated legal representative’ means the applicant’s legal representative (if any), or the legal representative of such other party as the court directs to arrange the telephone hearing; and

(b) ‘telephone conference enabled court’ means –

(i) a district registry of the High Court; or

(ii) a County Court hearing centre,

in which telephone conferencing facilities are available.

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When a hearing is to be conducted by telephone

6.2 Subject to paragraph 6.3, at a telephone conference enabled court the following hearings will be conducted by telephone unless the court otherwise orders –

(a) allocation hearings;

(b) listing hearings; and

(c) interim applications, case management conferences and pre-trial reviews with a time estimate of no more than one hour.

6.3 Paragraph 6.2 does not apply where –

(a) the hearing is of an application made without notice to the other party;

(b) all the parties are unrepresented; or

(c) more than four parties wish to make representations at the hearing (for this purpose where two or more parties are represented by the same person, they are to be treated as one party).

6.4 A request for a direction that a hearing under paragraph 6.2 should not be conducted by telephone –

(a) must be made at least 7 days before the hearing or such shorter time as the court may permit; and

(b) may be made by letter,

and the court shall determine such request without requiring the attendance of the parties.

6.5 The court may order that an application, or part of an application, to which paragraph 6.2 does not apply be dealt with by a telephone hearing. The court may make such order –

(a) of its own initiative; or

(b) at the request of the parties.

6.6 The applicant should indicate on his application notice if he seeks a court order under paragraph 6.5. Where he has not done so but nevertheless wishes to seek an order, the request should be made as early as possible.

6.7 An order under paragraph 6.5 will not normally be made unless every party entitled to be given notice of the application and to be heard at the hearing has consented to the order.

6.8 If the court makes an order under paragraph 6.5 it will give any directions necessary for the telephone hearing.

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Conduct of the telephone hearing

6.9 No party, or representative of a party, to an application being heard by telephone may attend the judge in person while the application is being heard unless every other party to the application has agreed that he may do so.

6.10 If an application is to be heard by telephone the following directions will apply, subject to any direction to the contrary –

(1) The designated legal representative is responsible for arranging the telephone conference for precisely the time fixed by the court. The telecommunications provider used must be one on the approved panel of service providers (see Her Majesty’s Courts and Tribunals Service website at www.hmcourts-service.gov.uk)

(2) The designated legal representative must tell the operator the telephone numbers of all those participating in the conference call and the sequence in which they are to be called.

(3) It is the responsibility of the designated legal representative to ascertain from all the other parties whether they have instructed counsel and, if so, the identity of counsel, and whether the legal representative and counsel will be on the same or different telephone numbers.

(4) The sequence in which they are to be called will be –

(a) the designated legal representative and (if on a different number) his counsel;

(b) the legal representative (and counsel) for all other parties; and

(c) the judge.

(5) Each speaker is to remain on the line after being called by the operator setting up the conference call. The call shall be connected at least ten minutes before the time fixed for the hearing.

(6) When the judge has been connected the designated legal representative (or his counsel) will introduce the parties in the usual way.

(7) If the use of a ‘speakerphone’ by any party causes the judge or any other party any difficulty in hearing what is said the judge may require that party to use a hand held telephone.

(8) The telephone charges debited to the account of the party initiating the conference call will be treated as part of the costs of the application.

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Documents

6.11 Where a document is required to be filed and served the party or the designated legal representative must do so no later than 4pm at least 2 days before the hearing.

6.12 A case summary and draft order must be filed and served in –

(a) multi-track cases; and

(b) small and fast track cases if the court so directs.

6.13 Any other document upon which a party seeks to rely must be filed and served in accordance with the period specified in paragraph 6.11.

(Rule 2.8 explains how to calculate period of time expressed in terms of days.)

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Video conferencing

7 Where the parties to a matter wish to use video conferencing facilities, and those facilities are available in the relevant court, they should apply to the Master or District Judge for directions.

(Paragraph 29 and Annex 3 of Practice Direction 32 provide guidance on the use of video conferencing in the civil courts)

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Note of Proceedings

8 The procedural judge should keep, either by way of a note or a tape recording, brief details of all proceedings before him, including the dates of the proceedings and a short statement of the decision taken at each hearing.

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Evidence

9.1 The requirement for evidence in certain types of applications is set out in some of the rules and practice directions. Where there is no specific requirement to provide evidence it should be borne in mind that, as a practical matter, the court will often need to be satisfied by evidence of the facts that are relied on in support of or for opposing the application.

9.2 The court may give directions for the filing of evidence in support of or opposing a particular application. The court may also give directions for the filing of evidence in relation to any hearing that it fixes on its own initiative. The directions may specify the form that evidence is to take and when it is to be served.

9.3 Where it is intended to rely on evidence which is not contained in the application itself, the evidence, if it has not already been served, should be served with the application.

9.4 Where a respondent to an application wishes to rely on evidence which has not yet been served he should serve it as soon as possible and in any event in accordance with any directions the court may have given.

9.5 If it is necessary for the applicant to serve any evidence in reply it should be served as soon as possible and in any event in accordance with any directions the court may have given.

9.6 Evidence must be filed with the court as well as served on the parties. Exhibits should not be filed unless the court otherwise directs.

9.7 The contents of an application notice may be used as evidence (otherwise than at trial) provided the contents have been verified by a statement of truth1.

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Consent orders

10.1 Rule 40.6 sets out the circumstances where an agreed judgment or order may be entered and sealed.

10.2 Where all parties affected by an order have written to the court consenting to the making of the order a draft of which has been filed with the court, the court will treat the draft as having been signed in accordance with rule 40.6(7).

10.3 Where a consent order is made by a judge, the order must be drawn so that the judge’s name and judicial title can be inserted.

10.4 The parties to an application for a consent order must ensure that they provide the court with any material it needs to be satisfied that it is appropriate to make the order. Subject to any rule or practice direction a letter will generally be acceptable for this purpose.

10.5 Where a judgment or order has been agreed in respect of an application or claim where a hearing date has been fixed, the parties must inform the court immediately. (Note that parties are reminded that under rules 28.4 and 29.5 the case management timetable cannot be varied by written agreement of the parties.)

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Other applications considered without a hearing

11.1 Where rule 23.8(b) applies the parties should so inform the court in writing and each should confirm that all evidence and other material on which he relies has been disclosed to the other parties to the application.

11.2 Where rule 23.8(c) applies the court will treat the application as if it were proposing to make an order on its own initiative.

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Applications to stay claim where related criminal proceedings

11A.1 An application for the stay of civil proceedings pending the determination of related criminal proceedings may be made by any party to the civil proceedings or by the prosecutor or any defendant in the criminal proceedings.

11A.2 Every party to the civil proceedings must, unless he is the applicant, be made a respondent to the application.

11A.3 The evidence in support of the application must contain an estimate of the expected duration of the stay and must identify the respects in which the continuance of the civil proceedings may prejudice the criminal trial.

11A.4  In order to make an application under paragraph 11A.1, it is not necessary for the prosecutor or defendant in the criminal proceedings to be joined as a party to the civil proceedings.

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Miscellaneous

12.1 Except in the most simple application the applicant should bring to any hearing a draft of the order sought. If the case is proceeding in the Royal Courts of Justice and the order is unusually long or complex it should also be supplied on disk for use by the court office.

12.2 Where rule 23.11 applies, the power to re-list the application in rule 23.11(2) is in addition to any other powers of the court with regard to the order (for example to set aside, vary, discharge or suspend the order).

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Costs

13.1 Attention is drawn to Practice Directions 44 to 48 on costs and, in particular, to Subsections 8 and 9 of Practice Direction 44 which relate to the court’s power to make a summary assessment of costs.

13.2 Attention is also drawn to rule 44.10(1) which provides that if an order makes no mention of costs, none are payable in respect of the proceedings to which it relates.

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Footnotes

  1. See Part 22. Back to text
Ministry of Justice

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