Syllabus Area 16 - Interim Payments and Security of Costs Flashcards
What is an interim payment?
An interim payment is an account of damages, debt or other sum which a defendant may be held liable to pay.
Who can ask for an interim payment?
Only a claimant - application made by C.
How many interim payments can one have?
C can make more than one application.
When can an interim payment be made?
Can be made any time during or before proceedings.
What should a C do first before applying to court?
Seek whether D will make a voluntary payment first. If D does not agree, C makes application.
When can a C make an application?
Only after D files AOS/Defence.
When should the application be served for interim payment?
Atleast 14 days before hearing of application.
What should be included in application for interim payment?
Application notice, draft order, evidence, fee and notice of hearing date.
What should D do if wish to rely on evidence?
It must be filed and serve at least 7 days before hearing and copies served on every party.
What should A do if wish to rely on evidence in reply?
Must be served and filed at least 3 days before hearing.
In what form does the court order an interim payment?
In one sum or installemnts.
What must the court consider in terms of how much payment?
Must not make payment of more than reasonable proportion of likely amount in final judgement.
How many conditions must be satisfied for a interim payment?
Only one.
What must the court take into account when arriving at how much to pay?
Set offs, CN and counterclaims.
What conditions must be satisfied for an interim payment?
Either: 1) D admits liability to pay damages/sum of money, 2) C has obtained judgement against D for damages to be assessed/sum of money, 3) Court would be satisfied that at trial C would obtain judgment, 4) Court makes a possession order for land and is satisfied that if case went to trial D would pay, 5) where there are two or more D’s, the court is satisfied that if claim went to trial, C would obtain judgment and D’s are either insured, liability met by insurer under RTA or D is a public body.
What power does the court hold in terms of payment?
Court can adjust payment even if D voluntarily pays within its own initiative and without application.
What power does the court have in terms of ordering?
Order all or part of payment to be repaid, vary/discharge the interim order, order D to reimburse wholly or partly another D who has made an interim payment - can only be made if there has been another claim against each other for contribution/indemnity.
What must not be explored when ordering an interim payment?
The merits of the case unless there is a degree of probability of success/failure to otherwise explore merits simply creates unnecessary hearings.
What restrictions is there on disclosure of interim payments?
If interim payment has been made voluntarily or by order this cannot be disclosed to trial judge until all questions of liability and amount of order has been decided.
What evidence is needed for an interim payment application?
Amount of interim payment sought, items/matters interim payment relates to, expected amount at final judgment, reasons why conditions are met and any other relevant info.
What evidence is needed for an interim payment for a personal injury claim?
Details of special damages, past/future losses, medical reports.
What evidence is needed for an interim payment for an fatal accident claim?
Details of claimants and nature of claim.
What is the purpose of security of costs?
Security of costs is where D is concerned C will not be willing to pay D’s costs should be successfully defended.
What are the conditions that need to be satisfied on application for security of costs?
Court may make order if it is satisfied having regard to ALL CIRCUMSTANCES that it is JUST and one of the prescribed conditions.
What are the prescribed conditions to be satisfied on application for security of costs?
- Claimant is resident outside jurisdiction, 2. Claimant is a company, 3. Claimant moving assets.
What is meant by resident?
Individuals usual habitat - if a company, this is where central management/control is exercised.
What does out of jurisdiction mean?
Not in England and Wales - cannot be in Mexico, Singapore or Montenegro.
What is the condition meant for a claimant to be a company security of costs?
Claimant must be an impecunious company - not an individual.
What is the test for a claimant being a company for security of costs?
The defendant must show that the company cannot pay costs AND the amount of likely costs - there only needs reason to believe.
What does the condition of the claimant moving assets prevent for security of costst?
Prevents injustice where assets available to enforce an order for costs and have been put beyond reach of enforcement e.g transferring overseas.
What will the court take into account when C is a company for security of costs?
The stakeholders/shareholders, directors.
What is the burden of proof for the claimant is a company condition for security of costs?
Burden of proof is on D to show C has a lack of funds even if the funds from anywhere else.
If a C destroys/dissipated assets, what can be done for security of costs?
If C makes enforcement difficult, D can rely on the condition to prevent injustice where the assets available are being put beyond the reach of enforcement.
What kind of relevant steps makes the enforcement of a security of costs order difficult?
Dissipation/transferring assets overseas/places unknown to D.
What should the court examine if C is making enforcement difficult?
The steps taken by C - examine the conduct objectively. If assets are found - consider the reasonable interference.
What will make a strong application for where C is making enforcement difficult?
If can show C has dishonest conduct.
What is the courts discretion over security of costs?
Even if one condition is met, the court is not obliged to give security - it will only be satisfied if you have regard to all circumstances and it is just to make an order.
What are the main considerations included when the court has discretion to order security of costs?
Ability for claimant to comply with order, the claim is genuine, claimant has real prospect of success, admission by D, substantial payment into court, whether the security is stop a genuine claim, claimant lacks of means brought about by any conduct of D.
What must the court perform when considering an order for security of costs?
A balancing exercise of preventing injustice for the D but also the C who may have a genuine claim who may be prevented from pursuing if they provide security.
What type of security can be given?
Undertaking, payment to court, payment to D’s solicitor, bank guarantee.
Who determines the amount of/the type of security?
Court - court determines how much and the manner/timing the security must be given.
What will the court not take into account when looking at the amount of security?
Whether the D is wealthy/covered by indemnity.
What can the court order instead of security of costs?
Security costs as a sanction as it has a lower threshold than balance of probabilities.
What will the court consider when considering the amount of security?
Amount of D’s likely costs, security till when, amount can cover incurred/future, dedication can be made likely reduction upon assessment of costs, other factors e.g delaying meaning security not given for costs already incurred.
What is the procedure for security of costs?
Application notice, draft order, fee, evidence - must include grounds which apply.
