SA16A Interim Payments Flashcards
What is the general principle regarding the payment of damages/debt or other sum (excluding costs) by the defendant.
How do interim payments relate to this general principle?
The defendant has the right not to be required to pay anything to C until liability has been established by final judgment.
An exception.
What type of remedy are interim payments?
Discretionary.
What are the three circumstances in which the court will make an order for an interim payment?
1) D admits liability.
2) C has already obtained a judgment against D for damages to be assessed.
3) The court is SATISFIED that if the claim went to trial, C WOULD OBTAIN judgment against D for a SUBSTANITAL AMOUNT OF MONEY against the D from whom he is seeking the order (high test).
At what point can an application for an interim payment be made?
When should it be made?
Only after the time for filing the acknowledgment of service by the relevant defendant – 14 days after the deemed service of the POC.
As soon as it becomes apparent it is necessary/desirable to make it.
When assessing whether the C ‘would obtain judgment for a substantial amount of money’ (in relation to interim payments),
a) What is the standard on which it will make its decision?
b) Does the court take into account any set-off, counterclaim or allegations of contributory negligence?
a) Civil standard (balance of probabilities).
b) Yes.
If the test for interim payments is satisfied (i.e. the claimant ‘will’ win), what else should happen?
Summary judgment should be entered.
What amount should the court make an order for interim payment?
Not more than a REASONABLE PROPORTION of the likely amount of the final judgment (taking into account set-offs, counterclaim etc.).
The amount should not expose D to the risk that the eventual damages would be less than the interim payment.
How does C’s need for the money factor into the award of an interim payment.
There is NO requirement that C has a particular need for the money unless an interim payment is sought in relation to future loss/expenses.
What is the procedure for making an application for an interim payment?
- Application notice.
- Supported by evidence (usually WS).
- Must be served on R to the application (usually D) at least 14 days before the hearing.
- An R who wishes to rely on evidence must file/serve a WS in reply at least 7 days before the hearing date.
- Any further witness statement in reply by C must be filed/served at least 3 days before the hearing.
How much notice must be given on R before an interim payment hearing?
Application notice must be served on R at least 14 days before the hearing.
If R wishes to rely on evidence, how much in advance of the hearing date must he file/serve it?
7 days.
If C wishes to file any further witness statements in reply to R’s evidence, how much in advance of the hearing date must he file/serve it?
3 days ( exception to the 3 clear days for notice rule).
What evidence should be filed to support an application for interim payment?
a) The sum sought by way of interim payment.
b) The items or matters in respect of which the interim payment is sought.
c) The sum of money for which final judgment is likely to be given.
d) The reasons for believing that the grounds for the application are satisfied (i.e. that the test is met).
e) In a PI claim, details of special damage and past and future loss.
f) Documents in support, including medical reports.
g) In a PI case, D should obtain a certificate of recoverable benefits and file it at the hearing.
When should the fact that an interim payment has been ordered be disclosed to the trial judge?
Not until all issues of both liability and quantum have been finally determined, unless the defendant agrees (otherwise risk the trial judge may be prejudiced by the interim payment).
How many applications can C make for interim payment?
Not limited, but in practice, a subsequent application will have to be justified by a material change in circumstances or some other good reason.
