Syllabus Area 16 - Interim Payments and Security of Costs

Question 1

What is an interim payment?

Answer 1

An interim payment is an account of damages, debt or other sum which a defendant may be held liable to pay.

Question 2

Who can ask for an interim payment?

Answer 2

Only a claimant - application made by C.

Question 3

How many interim payments can one have?

Answer 3

C can make more than one application.

Question 4

When can an interim payment be made?

Answer 4

Can be made any time during or before proceedings.

Question 5

What should a C do first before applying to court?

Answer 5

Seek whether D will make a voluntary payment first. If D does not agree, C makes application.

Question 6

When can a C make an application?

Answer 6

Only after D files AOS/Defence.

Question 7

When should the application be served for interim payment?

Answer 7

Atleast 14 days before hearing of application.

Question 8

What should be included in application for interim payment?

Answer 8

Application notice, draft order, evidence, fee and notice of hearing date.

Question 9

What should D do if wish to rely on evidence?

Answer 9

It must be filed and serve at least 7 days before hearing and copies served on every party.

Question 10

What should A do if wish to rely on evidence in reply?

Answer 10

Must be served and filed at least 3 days before hearing.

Question 11

In what form does the court order an interim payment?

Answer 11

In one sum or installemnts.

Question 12

What must the court consider in terms of how much payment?

Answer 12

Must not make payment of more than reasonable proportion of likely amount in final judgement.

Question 12

How many conditions must be satisfied for a interim payment?

Answer 12

Only one.

Question 13

What must the court take into account when arriving at how much to pay?

Answer 13

Set offs, CN and counterclaims.

Question 14

What conditions must be satisfied for an interim payment?

Answer 14

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.

Question 15

What power does the court hold in terms of payment?

Answer 15

Court can adjust payment even if D voluntarily pays within its own initiative and without application.

Question 16

What power does the court have in terms of ordering?

Answer 16

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.

Question 17

What must not be explored when ordering an interim payment?

Answer 17

The merits of the case unless there is a degree of probability of success/failure to otherwise explore merits simply creates unnecessary hearings.

Question 18

What restrictions is there on disclosure of interim payments?

Answer 18

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.

Question 19

What evidence is needed for an interim payment application?

Answer 19

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.

Question 20

What evidence is needed for an interim payment for a personal injury claim?

Answer 20

Details of special damages, past/future losses, medical reports.

Question 21

What evidence is needed for an interim payment for an fatal accident claim?

Answer 21

Details of claimants and nature of claim.

Question 22

What is the purpose of security of costs?

Answer 22

Security of costs is where D is concerned C will not be willing to pay D’s costs should be successfully defended.

Question 23

What are the conditions that need to be satisfied on application for security of costs?

Answer 23

Court may make order if it is satisfied having regard to ALL CIRCUMSTANCES that it is JUST and one of the prescribed conditions.

Question 24

What are the prescribed conditions to be satisfied on application for security of costs?

Answer 24

1. Claimant is resident outside jurisdiction, 2. Claimant is a company, 3. Claimant moving assets.

Question 25

What is meant by resident?

Answer 25

Individuals usual habitat - if a company, this is where central management/control is exercised.

Question 26

What does out of jurisdiction mean?

Answer 26

Not in England and Wales - cannot be in Mexico, Singapore or Montenegro.

Question 27

What is the condition meant for a claimant to be a company security of costs?

Answer 27

Claimant must be an impecunious company - not an individual.

Question 28

What is the test for a claimant being a company for security of costs?

Answer 28

The defendant must show that the company cannot pay costs AND the amount of likely costs - there only needs reason to believe.

Question 29

What does the condition of the claimant moving assets prevent for security of costst?

Answer 29

Prevents injustice where assets available to enforce an order for costs and have been put beyond reach of enforcement e.g transferring overseas.

Question 30

What will the court take into account when C is a company for security of costs?

Answer 30

The stakeholders/shareholders, directors.

Question 31

What is the burden of proof for the claimant is a company condition for security of costs?

Answer 31

Burden of proof is on D to show C has a lack of funds even if the funds from anywhere else.

Question 32

If a C destroys/dissipated assets, what can be done for security of costs?

Answer 32

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.

Question 33

What kind of relevant steps makes the enforcement of a security of costs order difficult?

Answer 33

Dissipation/transferring assets overseas/places unknown to D.

Question 34

What should the court examine if C is making enforcement difficult?

Answer 34

The steps taken by C - examine the conduct objectively. If assets are found - consider the reasonable interference.

Question 35

What will make a strong application for where C is making enforcement difficult?

Answer 35

If can show C has dishonest conduct.

Question 36

What is the courts discretion over security of costs?

Answer 36

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.

Question 37

What are the main considerations included when the court has discretion to order security of costs?

Answer 37

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.

Question 38

What must the court perform when considering an order for security of costs?

Answer 38

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.

Question 39

What type of security can be given?

Answer 39

Undertaking, payment to court, payment to D’s solicitor, bank guarantee.

Question 40

Who determines the amount of/the type of security?

Answer 40

Court - court determines how much and the manner/timing the security must be given.

Question 41

What will the court not take into account when looking at the amount of security?

Answer 41

Whether the D is wealthy/covered by indemnity.

Question 42

What can the court order instead of security of costs?

Answer 42

Security costs as a sanction as it has a lower threshold than balance of probabilities.

Question 43

What will the court consider when considering the amount of security?

Answer 43

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.

Question 44

What is the procedure for security of costs?

Answer 44

Application notice, draft order, fee, evidence - must include grounds which apply.