New section 9E – Hearing on application
531.Section 9E sets out the procedure to be followed at a hearing on an application for warrant for interim attachment. Such a hearing on an application takes place in respect of applications where the creditor either doesn’t apply for a warrant to be granted in advance of a hearing or where the court refuses to make an order granting a warrant without a hearing.
532.Subsection (1) places a duty on the court, at the hearing, to give any person who received intimation of the hearing date (namely the debtor and any person appearing to the court to have an interest) the chance to make representations before the court makes a decision on the application.
533.Under subsections (2) and (3) the court may grant the warrant if it is satisfied as to the same matters which it is obliged to consider under section 9D(2), namely that—
the creditor has a prima facie case on the merits of the court action;
there would be a real and substantial risk of the debtor frustrating enforcement of a decree found in favour of the creditor by being or becoming insolvent, or putting the debtor’s assets beyond the reach of the creditor if warrant for interim attachment were not granted; and
it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to grant the warrant.
534.Subsection (4) puts the onus of satisfying the court that it should grant warrant on the creditor.
535.Subsection (5) provides for intimation of the court’s decision to the debtor and any other person it thinks has an interest.
536.Subsection (6) provides that in refusing the warrant the court may impose such conditions as it thinks fit. Subsection (7) gives examples of particular conditions which the court might impose. This is similar to section 15F(6) of the 1987 Act (inserted by section 169 of this Act) – see paragraph 480480 above.