16, 17 AND 18. CIVIL LITIGATION 2023-2024: COSTS
SECURITY FOR COSTS, INTERIM PAYMENTS AND DISCONTINUANCE
READING KEY POINTS
REFERENCE
Summary Court’s powers when it determines a summary judgment application:
Judgment ● When the court determines a summary judgment on application it may give directions as to
filing and service of a defence and/or give further directions about the management of the
case.
● Further directions include the possibility of a conditional order, this will be made if it appears
to the court that, in respect of some claim or defence, it is possible that it may succeed but
it is improbable that it will do so.
● This is an order which requires a party to pay a sum of money into the court or to make a
specified step in relation to the claim or defence, and which provides that the party’s claim
will be dismissed or struck out if he does not comply.
Interim General procedure:
Payments ● The claimant may not apply for an order for an interim payment before the end of the period
for filing an acknowledgment of service applicable to the defendant against whom the
application is made.
● The claimant may make more than one application for an order for an interim payment.
● A copy of an application notice must be served at least 14 days before the hearing of the
application and be supported by evidence.
○ The application notice must state the order sought and the date, time and palace of
the hearing.
○ It must be served with evidence in support as soon as practicable and not less than
3 days before the hearing. Wherever possible, a draft order sought should be filed.
● If the respondent to an application wishes to rely on written evidence they must file the
written evidence and serve copies on every other party to the application at least 7 days
before the hearing of the application.
● If the applicant wishes to rely on written evidence in reply, he must file the written evidence
and serve a copy on the respondent at least 3 days before the hearing of the application.
● Written evidence which has been filed or served already does not have to be served again.
● The court may order an interim payment in one sum or in instalments.
Conditions to be satisfied and matters to be taken into account:
● The court may only make an order for an interim payment where any of the following
conditions are satisfied:
○ The defendant against whom the order is sought has admitted liability to pay
damages or some other sum of money to the claimant;
○ 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;
○ 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 is
he is seeking an order for an interim payment whether or not that the defendant is
the only defendant or one of a number defendants to the claim.
○ The following conditions are satisfied:
1
, ■ 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
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 –
● 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
● all the defendants are either –
○ a defendant that is insured in respect of the claim;
○ 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
○ a defendant that is a public body.
● The court must not order an interim payment of more than a reasonable proportion of the
likely amount of the final judgment.
● The court must take into account contributory negligence and any relevant set-off or
counterclaim.
Powers of the court where it has made an order for interim payment:
● Where a defendant has been ordered to make an interim payment or has made one, the
court may make an order to adjust the interim payment.
● The court may in particular order:
○ All or part of the interim payment to be repaid;
○ Vary or discharge the order for the interim payment; or
○ Order a defendant to reimburse, either wholly or partly, another defendant who has
made an interim payment.
■ The court may only make an order for reimbursement if the defendant to be
reimbursed made the interim payment in relation to a claim in respect of
which he has made a claim against the other defendant for contribution,
indemnity or other remedy and where the claim or part to which the interim
payment relates has not been discontinued or disposed of, the
circumstances are such that the court could make an order for interim
payment.
● 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.
● Where a defendant has made an interim payment and the amount of the payment is more
than his total liability under the final judgment or order, the court may award him interest on
the overpaid amount from the date when he made the interim payment.
Restriction on disclosure of an interim payment:
● 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 the defendant agrees.
2
SECURITY FOR COSTS, INTERIM PAYMENTS AND DISCONTINUANCE
READING KEY POINTS
REFERENCE
Summary Court’s powers when it determines a summary judgment application:
Judgment ● When the court determines a summary judgment on application it may give directions as to
filing and service of a defence and/or give further directions about the management of the
case.
● Further directions include the possibility of a conditional order, this will be made if it appears
to the court that, in respect of some claim or defence, it is possible that it may succeed but
it is improbable that it will do so.
● This is an order which requires a party to pay a sum of money into the court or to make a
specified step in relation to the claim or defence, and which provides that the party’s claim
will be dismissed or struck out if he does not comply.
Interim General procedure:
Payments ● The claimant may not apply for an order for an interim payment before the end of the period
for filing an acknowledgment of service applicable to the defendant against whom the
application is made.
● The claimant may make more than one application for an order for an interim payment.
● A copy of an application notice must be served at least 14 days before the hearing of the
application and be supported by evidence.
○ The application notice must state the order sought and the date, time and palace of
the hearing.
○ It must be served with evidence in support as soon as practicable and not less than
3 days before the hearing. Wherever possible, a draft order sought should be filed.
● If the respondent to an application wishes to rely on written evidence they must file the
written evidence and serve copies on every other party to the application at least 7 days
before the hearing of the application.
● If the applicant wishes to rely on written evidence in reply, he must file the written evidence
and serve a copy on the respondent at least 3 days before the hearing of the application.
● Written evidence which has been filed or served already does not have to be served again.
● The court may order an interim payment in one sum or in instalments.
Conditions to be satisfied and matters to be taken into account:
● The court may only make an order for an interim payment where any of the following
conditions are satisfied:
○ The defendant against whom the order is sought has admitted liability to pay
damages or some other sum of money to the claimant;
○ 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;
○ 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 is
he is seeking an order for an interim payment whether or not that the defendant is
the only defendant or one of a number defendants to the claim.
○ The following conditions are satisfied:
1
, ■ 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
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 –
● 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
● all the defendants are either –
○ a defendant that is insured in respect of the claim;
○ 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
○ a defendant that is a public body.
● The court must not order an interim payment of more than a reasonable proportion of the
likely amount of the final judgment.
● The court must take into account contributory negligence and any relevant set-off or
counterclaim.
Powers of the court where it has made an order for interim payment:
● Where a defendant has been ordered to make an interim payment or has made one, the
court may make an order to adjust the interim payment.
● The court may in particular order:
○ All or part of the interim payment to be repaid;
○ Vary or discharge the order for the interim payment; or
○ Order a defendant to reimburse, either wholly or partly, another defendant who has
made an interim payment.
■ The court may only make an order for reimbursement if the defendant to be
reimbursed made the interim payment in relation to a claim in respect of
which he has made a claim against the other defendant for contribution,
indemnity or other remedy and where the claim or part to which the interim
payment relates has not been discontinued or disposed of, the
circumstances are such that the court could make an order for interim
payment.
● 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.
● Where a defendant has made an interim payment and the amount of the payment is more
than his total liability under the final judgment or order, the court may award him interest on
the overpaid amount from the date when he made the interim payment.
Restriction on disclosure of an interim payment:
● 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 the defendant agrees.
2
