#10357 - Interim Remedies Interim Payments S33 And S34 Sca - BPC Civil Litigation

INTERIM REMEDIES

• irrelevant whether has been a claim for a final remedy of that kind

  1. interim injunctions

  2. interim declarations

  3. orders regarding relevant property for: detention, custody or preservation; inspection, sampling; experimenting; sale (if perishable / desirable to sell quickly); payment of income from until claim concluded (separate orders)

  4. order authorising person to enter property to carry out (c)

  5. order for delivery-up of goods

  6. freezing injunction

  7. order directing party to provide info about location of property / assets

  8. search order (SO)

  9. s33 Supreme Court Act / s52 County Courts Act - order for disclosure of documents / inspection of property before a claim has been made

  10. s34 Supreme Court Act / s53 County Courts Act - order for disclosure of documents / inspection of property against a non-party

  11. order for interim payment: under r25.6 for payment by D on account of any damages, debt or other sum (except costs) which the court may hold D liable to pay

  12. order for specified fund to be paid into court / secured (where there is a dispute to a party's right to a fund)

  13. order permitting a party to pay money into court pending outcome of proceedings and directing that, if he does his personal property will be given up to him

  14. order directing party to prepare and file accounts relating to the dispute

  15. order directing any account to be taken / inquiry made by court

  16. order in IP proceedings making the continuation of an alleged infringement subject to lodging guarantees

PROCEDURE AND TIME TO APPLY

• generally same as any other interim application

• can only apply after D has filed AoS / defence

• if pre-action interim remedy granted, court should direct claim to be commenced except for applications made for pre-action inspection of property (s33 SCA)

INSPECTION OF PROPERTY DURING PROCEEDINGS (r25.1(c) and (d))

• relevant property = property including land which is the subject of claim - must be a physical thing

• orders can be sought

  • at allocation stage, by covering letter sent with directions questionnaire and disclosed to other parties at the same time (usual)

  • in draft consent directions filed with directions questionnaire (usual)

  • at case management conference

  • on application after issue of proceedings

• evidence in support of application to enter land (r25.1(d)) - must use affidavit (PD 32 para 1.4)

• apply on notice

• can get remedy without issuing proceedings (r25.2(4))

INTERIM DELIVERY UP OF GOODS

• proceedings for wrongful interference with goods

• usually made on notice, but if urgent may be made without notice / before issue

• guidelines for exercise (UK Ltd v Lambert):

  • clear evidence that D intends to dispose of goods to prevent C recovering them through a court

  • some evidence D acquired goods wrongfully

  • order must not act oppressively on D (balance)

• order: should clearly ID goods, authorize C to enter D's land with D's permission, make provision for safe custody of goods and may provide for delivery to C or person appointed by court

ORDER FOR DISCLOSURE / INSPECTION OF PROPERTY (s33 and s34 SCA) (r25.5)

General rules

• evidence in support must (if practicable) demonstrate by reference to SoC in (anticipated) proceedings that the property is relevant i.e.

  • is / may become the subject matter of such proceedings; OR

  • is relevant to issues in such proceedings (r25.5(2))

• must serve copy of application notice + evidence in support on:

  • s33 - person against whom order sought (r25.5(3)) before substantive proceedings are issued (r31.16)

  • s34 - person against whom order sought and every party except applicant (r25.5(3)) after substantive proceedings are issued (r31.17(2))

• form of order (r31.6 / 31.17 (4) and (5))

  • must specify docs / classes of docs R must disclose

  • must require R to specify which of those documents are no longer in his control / he claims a right or duty to withhold inspection

  • may require respondent to say what has happened to docs no longer in his control, and specify time and place for disclosure and inspection

• costs

  • usual rule: R awarded costs of the application and of complying with any order made by the applicant (r46.1(2))

  • may be departed from, if R has acted unreasonably / not complied with relevant pre-action protocol (r46.1(3))

Disclosure before proceedings - s33 SCA

• five conditions

  1. applicant must appear likely to be a party to future proceedings (not arbitration) (r31.16(3)(b))

  2. D must appear to be a likely party (r31.16(3)(a))

  3. must appear likely that relevant documents are / have been in D's possession, custody or power (s33(2) SCA)

  4. if proceedings had started, respondent's duty by way of standard disclosure would extend to documents of which applicant seeks disclosure (r31.16(3)(c))

  5. disclosure before proceedings must be desirable to dispose fairly of anticipated proceedings, assist in resolution without proceedings or to save costs (r31,16(3)(d))

Disclosure by non-parties - s34 SCA N.B.must issue proceedings before serving app notice

• three conditions

1. must appear that there are likely to be relevant documents in respondent's possession, custody or power

2. documents of which disclosure sought likely to support case of applicant / adversely affect case of one of other parties (r31.17(3)(a))

3. disclosure necessary to dispose fairly of claim or save costs (r31.17(3)(a))

INTERIM PAYMENTS

• order for interim payment = order for payment by D on account of any damages, debt or other sum (except costs) which the court may hold D liable to pay

• available where C can show that liability will be established

• most common in multi-track cases

• often used in tandem with successful SJ applications - conditional order on SJ may specify compliance with an interim payment order

Voluntary interim payments

• common if liability not in dispute but quantum still being investigated

• must seek permission of court before making voluntary interim payment in respect of a child or PP

PROCEDURE

Procedure for applicants and respondents (r25.6)

1. C must wait until after period for filing AoS has expired before applying for order

2. C may make more than one application, if change of circumstances

3. applicant must serve at least 14 days before hearing:

   • app notice (unless already served)

   • evidence in support (unless already served), comprising all documents in support of the application [including medical report if PI], dealing with:

     • sum of money sought by way of interim payment

     • the items / matters of respect of which payment is sought

(this is not restricted to purchases C needs to make, although the intended use of the money may be relevant e.g. for payment for future expenses - must show real need for money, and judge must be able to predict that award will exceed past specials and PSLA at trial)

• likely sum to be awarded in final judgment

• reasons for believing conditions met (see below)

• in PI claims, details of special damages and past and future loss

• Fatal Accidents Act claims, details of person on whose behalf claim made and nature of claim (PD25B para 2.1)

4. (if wishes to rely on written evidence at hearing) respondent must file written evidence and serve copies on all parties at least 7 days before hearing (unless already filed and / or served)

   • in PI claims, respondent should also obtain and file a certificate of recoverable benefits from the Secretary of State

5. (if wishes to rely on written evidence in reply) applicant must file written evidence and serve on respondent at least 3 days before hearing (unless already filed and / or served)

Procedure for court (r25.7)

1. Court considers if the conditions for granting an interim payment are met (r25.7(1))

   • court may only make order for interim payment if any one of following satisfied, BUT retains discretion not to even if condition satisfied:

     1. D has admitted liability to pay damages / other sum to C

     2. C has obtained judgment against D for damages / other sum (except costs) to be assessed

     3. ** the court is satisfied that, if the claim went to trial C would obtain judgment against D for a substantial sum (other than costs)

     4. C is seeking order for possession of land and the court is satisfied that if the case went to trial D would be held liable to pay C a sum for use and occupation of the land whilst the claim is pending;

     5. ** more than two Ds and:

        • the court is satisfied that,

          • if the claim went to trial C would obtain judgment against at least one D for a substantial sum (other than costs); AND

          • all the Ds are either insured, public bodies, or uninsured drivers whose liability will be met by insurer under RTA s151 / MIB / MIB itself

2. Court...