F1PART 25INTERIM REMEDIES
SECTION VInterim Payment Orders
Court’s powers25.20.
(1)
The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.
(2)
The court must take into account contributory negligence and any relevant set-off or counterclaim.
(3)
The court may order an interim payment by instalments. If so, the order must set out—
(a)
the total amount of the payment;
(b)
the amount of each instalment;
(c)
the number of instalments and the date on which each is to be paid; and
(d)
to whom payment should be made.
(4)
Where a party seeks an interim payment and the court has ordered an account to be taken, if on the evidence the account is bound to result in a payment to the applicant, the court must, before making an order for interim payment, order that the liable party pay to the applicant the amount shown by the account to be due.
(5)
The permission of the court must be obtained before making a voluntary interim payment in respect of a claim by a child or protected party. ‘Child’ and ‘protected party’ have the same meanings as in rule 21.1(2).
(6)
The court may adjust any interim payment whether or not any payment has yet been made (voluntarily or under a previously made order). The court may in particular—
(a)
order all or part of the interim payment to be repaid;
(b)
vary or discharge the order for the interim payment;
(c)
order a defendant to reimburse, either wholly or partly, another defendant who has made an interim payment.
(7)
The court may make an order under paragraph (6)(c) only if—
(a)
the defendant to be reimbursed has claimed against the other defendant for a contribution, indemnity or other remedy; and
(b)
where the claim to which the interim payment relates has not been discontinued or disposed of, the circumstances are such that the court could make an interim payment order under this Section.
(8)
Where a defendant has made an interim payment, and the amount of the payment is more than their total liability under the final judgment or order, the court may award them interest on the overpaid amount from the date when they made the interim payment.
(Practice Direction 40B, paragraphs 6.1 to 6.4 provide further information concerning adjustment of the final judgment sum.)
Applications25.21.
(1)
The claimant may not apply for an interim payment order before the end of the period for filing an acknowledgment of service applicable to the defendant against whom the application is made.
(Rule 10.3 sets out the period for filing an acknowledgment of service.)
(2)
The claimant may make more than one application for an interim payment order.
(3)
A copy of the application notice must be served at least 14 days before the hearing of the application and must be supported by evidence.
(4)
If the respondent wishes to rely on written evidence at the hearing, they must file the written evidence and serve copies on every other party to the application at least 7 days before the hearing.
(5)
If the applicant wishes to rely on written evidence in reply, they must file the written evidence and serve a copy on the respondent at least 3 days before the hearing.
(6)
This rule does not require written evidence to be filed if it has already been filed, or to be served on a party on whom it has already been served.
(7)
The court may make an order under this rule without an application by any party if it makes the order when it disposes of the claim or any part of it.
Evidence25.22.
(1)
An application for an interim payment order must be supported by evidence dealing with—
(a)
the sum of money sought by way of an 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 conditions set out in rule 25.23 are satisfied;
(e)
any other relevant matters;
(f)
in claims for personal injuries, details of special damages and past and future loss; and
(g)
in a claim under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim is made and the nature of the claim.
(2)
Any documents in support of the application must be exhibited, including, in personal injuries claims, any medical report.
Conditions to be satisfied25.23.
The court may only make an interim payment order where any of the following conditions are satisfied—
(a)
the defendant against whom the order is sought has admitted liability to pay damages or another sum of money to the claimant;
(b)
the claimant has obtained judgment against that defendant for damages to be assessed, or for another sum of money (other than costs) to be assessed;
(c)
it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom they are seeking an interim payment, whether or not that defendant is the only defendant or one of several;
(e)
the claimant is seeking an order for possession of land (whether or not any other order is also sought), and the court is satisfied that, if the case went to trial, the defendant would be held liable (even if the claim for possession fails) to pay the claimant a sum of money for the defendant’s occupation and use of the land while the claim for possession was pending; or
(f)
there are two or more defendants and the order is sought against any one or more of them, and—
(i)
the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the court cannot determine which); and
(ii)
all the defendants are either public bodies; or insured in respect of the claim; or are defendants whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988, or an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself.
Compensation recovery payments25.24.
(1)
Where in a claim for personal injuries there is a contested application for interim payment of damages, the defendant must obtain a certificate from the Secretary of State (as defined in rule 36.20(1)(e)) where the claim—
(a)
falls under the heads of damage set out in column 1 of Schedule 2 to the Social Security (Recovery of Benefits) Act 1997 (‘the 1997 Act’) in respect of recoverable benefits received by the claimant set out in column 2 of that Schedule, or includes damages in respect of a disease for which a lump sum payment within the definition in section 1A(2) of the 1997 Act has been, or is likely to be made; and
(b)
the defendant is liable to pay a recoverable amount (as defined in rule 36.20(1)(c)) to the Secretary of State.
(2)
A copy of the certificate must be filed at the hearing of the application.
(3)
The order must set out the deductible amount (as defined in rule 36.20(1)(d)).
(4)
The payment made to the claimant must be the net amount but for the purpose of calculating the payment after the final judgment, the gross amount of the interim payment must be used.
Restriction on disclosure25.25.
The fact that a defendant has made an interim payment, whether voluntarily or by court order, shall not be disclosed to the trial judge until all questions of liability and the amount of money to be awarded have been decided, unless that defendant agrees.