Interim Payments and Security for Costs

Question 1

true or false:
C may apply for an order for an interim payment before the end of the period for filing an acknowledgment of service applicable to D against whom the application is made.

Answer 1

false:
C may not apply for an order for an interim payment before the end of the period for filing an acknowledgment of service applicable to D against whom the application is made.

Question 2

true or false:
C may make more than one application for an order for an interim payment

Answer 2

true

Question 3

when must a copy of an application notice for an interim payment order must be served and what must this order be supported by?

Answer 3

at least 14 days before the hearing of the application and be supported by evidence

Question 4

if D wishes to rely on written evidence in an application for an interim order payment, what must he do and how long does he have to serve this before the application hearing?

Answer 4

he must file the written evidence and serve copies on every other party to the application at least 7 days before the application hearing.

Question 5

if an applicant wishes to rely on written evidence what must he do and when must he serve this?

Answer 5

he must file the written evidence, serve a copy on the respondent at least 3 days before the hearing of the application.

Question 6

when does r25.6(6) not require written evidence?

Answer 6

if it has already been filed or is to be served on a party on whom it has already been served.

Question 7

true or false:
the court may order an interim payment in one sum or in instalments

Answer 7

true

Question 8

what conditions must be satisfied for a court to make an order for an interim payment

Answer 8

(a) if D has admitted liability to pay damages or some other sum of money to C
(b) C has obtained judgment against that D for damages to be assessed or for a sum of money to be assessed.
(c) it is satisfied that C would obtain judgment for substantial amount of money against D from whom he is seeking an order for an interim payment whether or not D is the only D or one of a number of defendants to the claim.
(d) the following conditions are satisfied-
(i) C is seeking an order for possession of land; and
(ii) the court is satisfied that if the case went to trial that D would be held liable to pay C a sum of money for D’s occupation and use of the land whilst claim for possession was pending or
(e) in a claim where there are 2 or more D’s and order sought is against one or more of those D’s, the following conditions are satisfied:
(i) if claim went to trial, C would obtain judgment for a substantial amount of money against at least one of the D and
(ii) all the D’s are either-
(a) D that is insured in respect of claim
(b) D who’s liability will be met by an insurer under s151 of RTA 1988 or an insurer acting under the Motor Insurers Bureau Agreement or the Motor Insurers Bureau where it is acting itself; or
(c) D that is a public body.

Question 9

true or false:
the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment

Answer 9

true

Question 10

under CPR 25.7, what must the court take into account

Answer 10

contributory neg and
any relevant set-off or counterclaim

Question 11

true or false:
Where D has been ordered to make an interim payment or has in made an interim payment, the court may make an order to adjust the interim payment

Answer 11

true

Question 12

what may the court order where it has made an order for interim payment

Answer 12

(a) order all or part of the interim payment to be repaid
(b) vary or discharge the order for the interim payment
(c) order a D to reimburse, either wholly or partly another D who has made an interim payment.

Question 13

when may the court make an order under r25.8(2)(c)

Answer 13

if D is to be reimbursed made the interim payment in relation to a claim in respect of which he has made a claim against the other D for a contribution, indemnity or other remedy; and
(b) where the claim or part to which the payment relates hasn’t been discontinued or disposed of, the circumstances are such that the court could make an order for interim payment under r25.7

Question 14

true or false:
the court may make an order under this rule without an application by any party if it makes the order when it disposes of the claim or any part of it.

Answer 14

true

Question 15

when may the court award interest on the overpaid amount from the date when he made the interim payment?

Answer 15

Where D has made an interim payment; and
the amount of the payment is more than his total liability under the final judgment or order.

Question 16

true or false:
the fact that D has made an interim payment whether voluntarily or by court order, shall not be disclosed to the trial judge until all questions of liability and the amount of money to be awarded have been decided unless D agrees

Answer 16

true

Question 17

an application for an interim payment of damages must be supported by evidence dealing with what of the following?

Answer 17

the sum of money sought by way of an interim payment
the items or matters in respect of which the interim payment is sought
the sum of money for which final judgment is likely to be given
the reasons for believing that the conditions set out in rule 25.7 are satisfied
any other relevant matters .
in claims for personal injuries, details of special damages and past and future loss and
in a claim under the fatal accidents act 1976, details of the persons on whose behalf the claim is made and the nature of the claim.

Question 18

true or false:
any documents in support of the application should be exhibited including in PI claims, the medical reports

Answer 18

true

Question 19

true or false:
if D wishes to rely on written evidence at the hearing, he must comply with the provisions of rule 25.6(4)

Answer 19

true

Question 20

true or false:
if the applicant wishes to rely on written evidence in reply he must comply with the provisions of rule 25.6(5)

Answer 20

true.

Question 21

true or false:
an application for a security for costs must be supported by a statement of case?

Answer 21

false:
an application must be supported by written evidence

Question 22

where the court makes an order for security for costs, what will it do?

Answer 22

determine the amount of security and direct the manner and time within which the security must be given.

Question 23

when may the court may make an order for security for costs under r25.12

Answer 23

if it is satisfied having regard to all the circumstances of the case that it is just to make such an order and
one or more of the conditions in para 2 applies or an enactment permits the court to require security for costs.

Question 24

what are the conditions under r25.13(2)?

Answer 24

(a) that C is a resident out of the jurisdiction but not a resident in a state bound by the 2005 Hague Convention as defined in s1(3) of the Civil Jurisdiction and Judgments Act 1982
(c) the claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;
(d) the claimant has changed his address since the claim was commenced with a view to evading the consequences of the litigation;
(e) the claimant failed to give his address in the claim form, or gave an incorrect address in that form;
(f) the claimant is acting as a norminal claimant, other than as a representative claimant under Part 19, and there is reason to believe that he will be unable to pay the defendant’s costs if ordered to do so;
(g) the claimant has taken steps in relation to his assets that would make I t difficult to enforce an order for costs again him.

Question 25

in order for a party to be entitled to obtain such an order for costs, what must they ensure the court are satisfied of?

Answer 25

having regard to all the circumstances of the case, it is just to make an order and
one or more of the conditions in r25.13(2) applies or an enactment permits the court to require security for costs.

Question 26

true or false:
the preconditions or gateways in r25.13(2) are matters of facts and not discretion

Answer 26

true

Question 27

when deciding the amount of security and the manner and time in which it is to be provided the court must be required to have regard to what?

Answer 27

all the circumstances of the case

Question 28

what was stated in the case of Axiom Stone (London) Ltd v Heathfield International LLC [2021]

Answer 28

Nugee LJ accepted that the general principle underlying the grant of security is that the system of justice which prevails in this county is founded on the premise that the interests of justice are ordinarily best served if successful litigants recoup the costs of their litigation or the bulk of those costs and unsuccessful litigants pay them.
There is also a real difference between the position of the claimants for whom issuing proceedings is always a voluntary act and defendants for whom is being sued is not.

Question 29

true or false:
if the effect of an order for security would be to prevent the respondent to application from continuing its claim, then security should not be ordered

Answer 29

true

Question 30

in relation to stifling, where does the burden lie?

Answer 30

the burden lies on D to show on the balance of probabilities that the effect of an order would be to stifle the claim.

Question 31

how can the burden be discharged?

Answer 31

C will need to show that it can’t provide security and can’t obtain appropriate assistance to do so.

Question 32

true or false:
the court will expect C to be full and frank in relation to these matters?

Answer 32

true

Question 33

true or false:
it has been confirmed in the court of appeal, in respect of security for costs, the parties should not attempt to go into the merits of the case unless it can be clearly demonstrated one way or another that there is a high degree of probability of success or failure.

Answer 33

true