Interim Payments and Security for Costs

Question 1

CPR 25.6?

Answer 1

General procedure for interim payments

Question 2

What must C wait for before filing for an interim payment?

Answer 2

Can’t apply for an interim payment before period for acknowledgement of service has passed (14 days after filing of particulars or P + claim form)

Question 3

How many applications can be made for interim payments?

Answer 3

C may make more than 1 application but shouldn’t take the mick and do successive ones

Question 4

What must be done before a hearing for interim payments occurs?

Answer 4

A copy of the application notice supported by evidence for the IP order must be served 14 days before the hearing.

Question 5

If an interim payment respondent wants to rely on written evidence at hearing what must they do?

Answer 5

They must file the evidence and serve copies on all parties to the application at least 7 days before the hearing

Question 6

If an applicant for interim payment wants to use written evidence in answer to a respondent’s use, what must they do?

Answer 6

They must file the written evidence and serve it on the respondent at least 3 days before the application hearing.

Question 7

How can interim payments be ordered to be paid?

Answer 7

Court can order interim payments to be paid in lump sums or in instalments.

Question 8

When should an interim payment order be applied for?

Answer 8

As soon as practicable and no earlier than period for filing acknowledgement of service has passed.

Question 9

CPR25.7?

Answer 9

Conditions to be satisfied in order for the court to make an interim payment order.

Question 10

What are the 3 main times the court may grant interim payment?

Answer 10

(1) where D admits some liability to pay (2) if it is likely that C would obtain substantial money at trial (3) if C obtained judgment to assess damages

Question 11

When will interim payments be ordered by the court regarding land?

Answer 11

Where C seeks a possession order and court is satisfied D would be liable to pay C for their occupation and use while the claim was pending.

Question 12

When will the court grant interim payments in cases with 2+ Ds?

Answer 12

When satisfied that C would obtain judgment for a substantial sum (excl. costs) against at least 1 D AND all Ds are either insured or a public body.

Question 13

CPR 25.7(4)?

Answer 13

The court must not order more than a reasonable proportion of the likely final judgment as interim payment

Question 14

What do orders for interim payments take into account that is not considered during allocation?

Answer 14

Orders for interim payments account for contributory negligence and set-offs and counterclaims.

Question 15

CPR 25.8?

Answer 15

Lists the court’s powers once they’ve made an order for interim payment

Question 16

What are the 3 things a court can do after ordering an interim payment?

Answer 16

(1) order all or part payment (2) vary or discharge the order (3) order D1 to reimburse D2 for an interim payment either in part or fully.

Question 17

When can the court order one defendant to reimburse another’s interim payment?

Answer 17

Only when the related claim or part of has not been discontinued and the OG defendant is suing the new on in contribution or indemnity etc.

Question 18

When may the court exercise its powers under 25.8?

Answer 18

An order can be made without party application if made at same point of disposing of all or part of the claim.

Question 19

What happens if a defendant overpays their liability in an interim payment?

Answer 19

Per 25.8(5) the court MAY award interest on the overpaid amount from the date of deposit.

Question 20

CPR 25.9?

Answer 20

A trial judge should not know that any interim payment has been made by a defendant until all questions of liability and quantum have been decided (unless D agrees)

Question 21

CPR 25.12?

Answer 21

Covers Ds right to apply for security for his costs in proceedings.

Question 22

What must an application for security for costs have?

Answer 22

It must be supported by written evidence

Question 23

What details will the court give when ordering security for costs?

Answer 23

The court will (1) determine the amount of security and (2) direct the manner and time in which it is to be provided.

Question 24

Where can you find conditions that must be met in order for the court to grant security for costs?

Answer 24

CPR 25.13

Question 25

How many potential conditions permitting the order of security for costs are there?

Answer 25

7

Question 26

If the court is satisfied that it is just what is the 1st condition where they will order security for costs?

Answer 26

Per 25.13(2)(a), Where C is a resident outside of E&W but not of a country bound by the Hague convention.

Question 27

If the court is satisfied that it is just what is the 2nd condition where they will order security for costs?

Answer 27

N/A: omitted

Question 28

If the court is satisfied that it is just what is the 3rd condition where they will order security for costs?

Answer 28

Per 25.13(2)(c), where C is a company or other incorporated body and there's reason to believe they'll be unable to pay.

Question 29

If the court is satisfied that it is just what is the 4th condition where they will order security for costs?

Answer 29

Per 25.13(2)(d), where C has changed their address since commencement in order to evade consequences of litigation.

Question 30

If the court is satisfied that it is just what is the 5th condition where they will order security for costs?

Answer 30

Per 25.13(2)(e), where C failed to provide their address on claim form or gave an incorrect one.

Question 31

If the court is satisfied that it is just what is the 6th condition where they will order security for costs?

Answer 31

Per 25.13(2)(f), where C is acting as a nominal claimant and there's reason they'll be unable to pay Ds costs if ordered.

Question 32

If the court is satisfied that it is just what is the 7th condition where they will order security for costs?

Answer 32

Per 25.13(2)(g), where C has taken steps in relation to their assets to make it difficult to enforce costs orders against them.

Question 33

What are the 2 prerequisites to an order for security for costs?

Answer 33

That with regard to all circumstances of the case it is just to order, and that one or more of the conditions in 25.13(2) applies.

Question 34

What is important to remember about the court ordering security for costs?

Answer 34

The court will not award security simply because a condition of 25.13(2) is met - it must also be just and within overriding objective.

Question 35

What is Stifling?

Answer 35

Where the effect of an order for security is to prevent the respondent to application from continuing their claim.

Question 36

Who bears the burden of dis/proving stifling in security orders?

Answer 36

The Respondent (i.e. C) must show on balance of probabilities that a securities order would stifle their claim.

Question 37

How can a claimant prove stifling?

Answer 37

By showing, with evidence, that they cannot provide security nor obtain appropriate assistance to do so.

Question 38

Are the merits of the case relevant to the question of security stifling claims?

Answer 38

No - merits of the respondents case shouldn't USUALLY be considered when dealing with security for costs unless VERY UNIQUELY clear.

Question 39

How is the condition 25.13(2)(c) met?

Answer 39

By the applicant showing "reason to believe" that Cs company will be unable to pay Ds costs if so ordered. - this is a lesser standard than balance of probabilities.

Question 40

When should questions about a claimant company's inability to pay be decided?

Answer 40

At the time of application for security - court should assess what C would expect to have available - cash and assets - in the event of being ordered to pay costs.

Question 41

Will an insolvent Claimant company be protected from security orders by virtue of having a solvent parent company?

Answer 41

No - parent companies will be treated as irrelevant to security for costs questions.

Question 42

What MUST be remembered about r.25.13(2)(c)?

Answer 42

It does NOT provide for applications for security for costs against unincorporated associations.

Question 43

What does r.25.13(2)(g) primarily engage with?

Answer 43

How to recover a claimant's hidden assets which are hindering enforcement of court orders.

Question 44

What can the procedure for recovery in are.25.13(2)(g) also be used for?

Answer 44

Recovering assets from defendants in Pt 20 claims (counterclaims).

Question 45

What is the purpose of condition (g) under Rule 25.13?

Answer 45

To prevent injustice to D where assets are put beyond reach of legal enforcement.

Question 46

Where can you find the test for ascertaining whether C has hidden assets for the purpose of security for costs?

Answer 46

Ackerman v Ackerman [2011]

Question 47

What sort of test is the Ackerman test for hidden assets?

Answer 47

It is an objective test - has C taken steps to make an order difficult to enforce - not were they dishonest or motivated for some other thing.

Question 48

How can disclosure impact the ascertaining of hidden assets?

Answer 48

A party's failure to disclose assets CAN, but wont necessarily, lead to the inference that they were purposefully removed from the reach of creditiors.

Question 49

How will the court consider the role of D when ascertaining whether C has hidden assets for the purpose of security?

Answer 49

Court will consider whether a lack of means was brought about by Ds conduct

Question 50

How much money can the court order for security?

Answer 50

Up to the full amount claimed incl. nominal, it need not be substantial.

Question 51

When is the court more liekly to make an order for security for costs under condition (g)?

Answer 51

Where the extent of the steps taken by C to hide assets has a large effect on ability to enforce judgment - less likely to award the less of an effect there is.

Question 52

How private are applications under condition (g) for security for costs?

Answer 52

Not - its engagement with confidential financial information isn't sufficient for the application to require hearing in private.