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Section 17: Interlocutory applications and summary assessment of costs
Proposal 30
The rules should pursue the objective of reducing the need for interlocutory applications by
adopting one or more of the following strategies, namely :-
Encouraging the parties to cooperate with each other and to agree procedural
arrangements (subject to the court's residual jurisdiction to set aside or vary those
arrangements).
Authorising the court, in appropriate cases, to act on its own initiative in giving
procedural directions, without hearing any party before so acting (subject to
affected persons thereafter having a right to apply for orders so made to be set
aside or varied).
Making orders which specify the automatic consequences of non-compliance and
placing the onus on the party guilty of non-compliance to seek relief from those
consequences, such relief to be granted at the court's discretion.
The parties should be encouraged by rule and practice direction, backed by costs sanctions,
to adopt a reasonable and cooperative attitude in relation to all procedural issues.
Where the court considers one or more procedural directions to be necessary or desirable and
unlikely to be controversial between the parties, it ought to have power, of its own motion
and without hearing the parties, to give the relevant directions by way of an order nisi, with
liberty to the parties to apply within a stated period for that order not to be made absolute.
When disposing of interlocutory applications after the summons for directions, the court
should normally make orders which specify the automatic consequences of non-compliance
appropriate and proportionate to the non-compliance in question. Orders specifying such
consequences may, if appropriate, also be made where the interlocutory application is heard
before the summons for directions. However, the directions given on the summons for
directions itself should generally not specify any such consequences.
While it would be open to a party who has failed to comply with a self-executing order to
seek relief from the prescribed consequences of his non-compliance, such relief should not
be automatic and, if granted, should generally be granted on suitable terms as to costs and
otherwise.
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