Interim payments and security for costs PDF

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Interim Payments What is an interim payment?

Procedure

Evidence

An interim payment may ONLY be ordered IF:

What else must be considered when the court is considering whether to make an order for interim payment? How much should be awarded if interim payments are granted?

An order for payment for payment of a sum of money by D on account of any damages, debt or other sum (except costs) which the court may hold D liable to pay Application cannot be made until period of filing AoS has expired. Applications are made on notice to D and must be served at least 14 clear days before the hearing of the application. Must also be supported by evidence served with the application. - Amount sought - What the money will be used for - The likely amount of the total award - The reasons for believing the relevant ground is satisfied - In a PI claim, details of special damages and past and future loss, and - In a claim under Fatal Accidents Act 1976, details of persons on whose behalf the claim is made and the nature of the claim.

(a) D has admitted liability to pay damages or some other sum of money to C; (b) C has obtained judgment against D for damages or some other sum to be assessed; (c) The court is satisfied that if the claim went to trial C would obtain a substantial amount of money from D; (d) C is seeking possession of land, and court is satisfied that D would be liable to C for a sum of money; (e) Where the claim is brought against multiple Ds and: (i) The court is satisfied that C will obtain judgment of a substantial sum of money from at least one of the Ds; (ii) The court is unable to ascertain which D will lose; (iii) All Ds are either insured, public bodies, are Ds whose Liablity will be met by an insurer.

Any relevant counterclaims, set-offs or any contributory negligence. NB The power to grant interim payments is discretionary, and other factors can be considered. The court is not permitted to order more than a reasonable proportion of the likely amount of final judgment, taking into account counterclaims, set-off and contributory negligence. Therefore the court must take the structured approach of: 1. Calculating the likely final award. 2. Discounting the probability/value of any CC/ set off/ CN and 3. Reducing the amount again to arrive at a reasonable proportion.

In what way are interim payments secret?

The total amount for the interim payment may be ordered to be paid in instalments. May choose not to make award against impecunious D. Where such payments are ordered they must not be revealed to the trial judge until after liability AND quantum are decided.

Security for Costs What is an order for security for costs?

What is the procedure for making an application for a security for costs order?

Where a significant risk exists that D has no real prospect of recovering his costs if he is ultimately successful D can apply to court for an order for security for costs. Until payment is made into court, C’s claim is stayed. An application is normally made by D with notice at the first CMC using CPR 23. It should be accompanied by written evidence. C should be served with the application notice at least 3 clear days before the hearing of the application

Against whom can a security for costs order be made?

When is a security for costs order made? TEST

Exercise of DISCRETION to make security for costs

Power to make orders subject to conditions

Any claimant, which included a D making a counterclaim against C or a third party (‘TP’) (BUT NOT IF IT IS PURELY A SETOFF), or a D making an additional claim against a TP. Where: 1. One of the conditions in CPR 25.13 satisfied. 2. Having regard to all circumstances of the case, it would be just to exercise the court’s discretion in favour of making the order, and 3. The amount of security is sufficient. CPR 25.13 conditions: - C is resident outside jurisdiction: but not resident in a European Member state. – C’s habitual or normal residence’ – D carries burden of proof. - C is an insolvent company: C must be a company and there must be reason to believe C will be unable to pay D’s costs if ordered – this includes proof that C is in insolvency proceedings or signed WS of C’s inability to pay. A court will have regard to all circumstances, including: - The merits of the claim (without the court conducting a mini-trial) - The impact on C of being required to give security - Delay by D in making the application - Whether C’s limited financial means has been caused by D, AND, - D’s other options to recover costs. If satisfied in favour of D, final stage is to establish an appropriate amount for the security payment by C. Eg before granting an interim order, the court may require the party seeking it to provide an undertaking in case the party whom it is against suffers loss. Alternatively the court may require the parties to meet a particular deadline for service and filing of docs or evidence....