#13704 - Interim Payments And Security For Costs - BPC Civil Litigation

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.

1. D has admitted liability to pay damages or some other sum of money to C;

2. C has obtained judgment against D for damages or some other sum to be assessed;

3. The court is satisfied that if the claim went to trial C would obtain a substantial amount of money from D;

4. C is seeking possession of land, and court is satisfied that D would be liable to C for a sum of money;

5. Where the claim is brought against multiple Ds and:

1. The court is satisfied that C will obtain judgment of a substantial sum of money from at least one of the Ds;

2. The court is unable to ascertain which D will lose;

3. All Ds are either insured, public bodies, are Ds whose Liablity will be met by an insurer.

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.

The total amount for the interim payment may be ordered to be paid in instalments.

May choose not to make award against impecunious D.

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

When is a security for costs order made?

TEST

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...