14 Interim Payment Flashcards
What is an interim payment?
court ordering D to pay C some money before trial. Parties can agree to voluntary IP, but permission MUST be obtained if C is under disability.
Order for security for costs ONLY be made by CLAIMANT. On app for costs order, three matters arise:
- Whether one condition for ordering security for costs satisfied;
- If so, whether it would be just to exercise court’s discretion in favour of making the order; and
- If so, how much security should be provided
What is the timing for interim payment?
Not until end of time for filing A/S for relevant D (= 14 dys after deemed date of service of PoC).As soon as it becomes apparent = necessary or desirable to make app. If D doesn’t respond = they can enter default judgment.
What is the procedure for interim payment?
MUST be supported by evid (Witness statement). MUST be served on R to app 14 days before hearing. D who wishes to rely on evid MUST file/serve W/S in reply at least 7 days before hearing date. Any further W/S in reply by C must be file/served at least 3 days before hearing.
What is the evidence in support of interim payments?
evid should include:
- Sum sought by way of interim payment
- Items which interim payment is sought;
- Sum of money for which final judgment likely to be given
- Reasons for believing grounds for app are satisfied (e.g. if claim went to trial, C would succeed + win substantial damages);
- In PI claims, details of special damages + past + future loss
- In PI - Documents in support, includes medial reports
- In PI cases, D must obtain certificate of recoverable benefits and file it at hearing.
All relevant docs should be exhibited.
What does
WOULD OBTAIN JUDGMENT FOR SUBSTANTIAL AMOUNT OF MONEY (Condition C)
mean?
- Civil standard – balance of probabilities
- C WILL succeed, NOT merely likely
- “substantial amount” as opposed negligible.
- 2 stage test:
- Court considers if C obtains judgement for substantial sum
- Then court considers whether to exercise its discretion
- Takes into account at both stages, any set-off or counterclaim or allegations contributory negligence.
Double-barrelled interim payment/Summary Judgment app
What is the problem?
Apps MAY be made together.
If interim payment satisfied (C “will” win) – impossible D has ‘real prospects of successfully defending claim’ = summary judgment should be entered. Interim payment MAY be appropriate if SJ entered for damages to be assessed.
If court makes conditions order on SJ app = conditional order suitable if “possible R’s case MAY succeed but improbable it will”. Improbable, is at ods with court being satisfied C “WOULD” obtain judgment.
Conditions to make interim payment
Can only make order for interim payment if:
- The D against whom order sought admitted liability; or
- C obtained judgment against D for damages to be assessed; or
- Court satisfied if claim went to trial, C WOULD obtain judgment for substantial amount of money against D; or
- C seeking order for possession of land and if court went to trial = D WOULD be held liable to pay C = sum of money for occupation of land; or
-
C WOULD obtain judgment for substantial amount of money against at least 1 or two Ds being sued AND all the Ds are either:
- Insured;
- Ds whose liability will be met under RTA;
- Public bodies
MAY = DISCRETIONARY. Court MUST be satisfied (on balance of probabilities) that he WOULD. Best C will get = reasonable proportion.
What does condition (e)
of interim payment mean?
Condition (e) = Where:
- Two or more Ds
- Court satisfied, C would obtain judgment for substantial sum against at least 1 D;
- Court cannot determine which D would lose
- All Ds are insured, public bodies or Ds whose liability met by insurer.
What is the amount of interim payment?
Court must NOT make payment of more than reasonable proportion of likely amount of final judgment. Court MUST consider likely amount of final judgment + what’s reasonable. Court MUST take into account: set off, counterclaim, or allegation of contributory negligence = applies in second stage, i.e. when considering amount ordered. Amount payable must NOT expose D to risk eventual damage would be less than interim payment.
For interim payment, must you prove a “need”?
= NO requirement C needs the money. But procedural requirement that C’s evidence must cover items which IP is sought (position where IP is limited to past losses). Evidence required may be persuasive on urgency and/or quantum. If IP sought for “future losses/expenses” = ESSENTIAL establish a real need for money.
What does interim payment “secrecy” mean?
Fact IP ordered = must NOT be disclosed to trial judge until liability+ quantum finally determined UNLESS D agrees.
No of apps = C not limited to one app. But subsequent apps will be justified by material change of circumstances or some other good reason.
interim payment
Two-stage test:
TEST for security for costs:
- Condition satisfied?
- Should discretion be exercised on basis it is just in the circumstances.
What is the test for security of costs
Conditions:
- Claimant is:
- Resident out of jurisdiction; but not resident in Brussels Contracting State (EU C’s excluded);
- Claimant is company or other body + reason to believe it will be unable to pay D’s costs if ordered;
- C changed address to evade paying costs
- C failed to give address in CF, or gave incorrect address
- C acting as nominal C + good reasons unable to pay D’s costs
- C taken steps in relation to assets that would make it difficult to enforce an order for costs. Motive = irrelevant.
Resident outside jurisdiction = Security of costs MAY be ordered where joint C, some resident outside jurisdiction.
C taken steps with assets that would make it difficult to enforce costs order:
What steps would be taken?
- Steps taken to dissipate assets
- Transferring assets overseas
- Transferring assets to family + friends
No need to prove D any intention to defeat enforcement. No need to prove the steps were during litigation. MUST prove steps WILL hinder enforcement
