BVC Civil Procedure Interim Applications Interim Payments

Interim Applications Procedure - CPR 23 Form N244 to be used – the claimant should: state how he wants the application to be dealt with; state a time estimate specify the level of judge Oral evidence is rarely used – 32.6 Discs may be needed - PD

Without Notice Applications where there is exceptional urgency where the overriding objective is best served by doing so with the consent of all the parties with the permission of the court where para 2.10 applies where a court order, rule or practice direction permits

Without Notice Applications Urgency – eg: injunctions Para where a date has been fixed for a hearing and before that date one party wants to make an application but does not now have sufficient time The court should be informed as soon as possible

With Notice Applications Service - 3 days the hearing(23.7(1) ) Respondent – “as soon as possible” (PD ). Without a hearing if: the parties agree to the terms of the order sought the parties consider that the court should deal with the application without a hearing the court does not consider that a hearing would be appropriate

Costs in Interim Applications Summary assessment where 1 day or less unless: the party awarded costs is funded by the LSC (CPD 13.9) costs other than base costs are being awarded (CPD ) the paying party shows substantial grounds for disputing the sum claimed or there is insufficient time (CPD 13.2) the parties have agreed the amount – CPD 13.13(a)

Costs in Interim Applications Summary assessment – statement of costs must be filed no later than 24 days before the hearing (CPD 13.5(4) costs usually payable in 14 days (44.8) MacDonald v Taree Holdings Ltd The Times 28th December 2000 Detailed assessments (8)- on account payments can be ordered “fit for counsel” - CPD 8.7

Interim Payments Part 25 Court must consider: (a) if the circumstances warrant an interim award being made and (b) if so how much to award. Campbell v Mychrees [1998] EWCA Civ 60). must not order a sum which is “more than a reasonable proportion of a likely amount of the final judgment” (25.7(4) “contributory negligence and…any relevant set-off or counterclaim” (25.7(5) and the overriding objective, particularly (1.1(2) (c) British and Commonwealth Holdings plc v Quadrex Holdings Inc [1989] QB must also be considered - Harmon CFEM Facades (UK Ltd) (in liquidation) v The Corporate Office of the House of Commons [2000] EWHC Technology 84

Interim Payments Grounds (25.7): a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant; (b)the claimant has obtained judgment against that defendant for damages to be assessed or for a 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 he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim;

Interim Payments (d)the following conditions are satisfied – (i)the claimant is seeking an order for possession of land (whether or not any other order is also sought); and (ii)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

Interim Payments (e)in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied – (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 – (a)a defendant that is insured in respect of the claim; (b)a defendant 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; or (c)a defendant that is a public body.

Interim Payments Ground (c )- Claimant must show: he is bound to win (British and Commonwealth Holdings plc v Quadrex Holdings Inc [1989] QB 842 (b) his victory will be against the respondent to the application and that (c ) it will be for a substantial sum of money Overlap with summary judgment applications Ground (e) – where one D will be liable they all should pay up (as they can afford to)

Interim Payments can be made voluntarily –court’s approval may be needed (PD25B.1.2). Procedure – 14 days notice needed 7 days to respond 3 days for “rebuttal” PD 25B.4.1 – CRU certificate may be needed Future impact and(38.2(2) (b)