When a creditor commences legal proceedings against a debtor to recover a debt, the ordinary course of events would require the creditor to wait until he has obtained final judgment of the court to commence enforcement proceedings for recovery of the sums due. In English courts, a person suing for a debt may apply to the court for an order that the debtor pay a sum on account of the final sum which is likely to be found to be due. In this way, the creditor seeks a down payment from the court on overall liability of the debtor from the court.
The procedure allows a creditor suffering hardship to take action to obtain some payment by way of a lump sum or by instalments of some of the debt due in anticipation of what the court believes will ultimately be found to be payable. Depending upon the facts of the case, the court may be inclined to make an order in circumstances where the sums paid would reduce the sum which is ultimately likely to be paid, for instance where the funds would be applied to repairing equipment or plant that would generate revenue for the creditor.
Part 25 of the Civil Procedure Rules permits a claimant to make an application for an interim payment at any time after the filing of the Acknowledgement of Service. The Acknowledgement of Service is due to be filed no later than 14 days after the defendant has been served with the claim form (if an Acknowledgement of Service has not been filed by this time, the claimant is at liberty to file an application for default judgment).
If the creditor elects to make an application for an interim payment, the application notice must be supported by evidence. That evidence must:
After the application is filed, the defendant debtor will have an opportunity to file and serve written evidence in response to the application. The evidence in response must be filed and served not less than 7 before the hearing of the application before the court.
In order to be successful in such applications, the claimant creditor is required to satisfy the court on the balance of probabilities that it would obtain judgment in its favour if the proceedings were to proceed to trial, rather than it being merely likely that it would obtain judgment.
A creditor is not restricted from making a single application for a down payment, although a cautious claimant would not make a second application if there were good reasons why the first application was not successful. Even in the event that the first application was successful, the court is likely to wish to be satisfied that there has been a material change in circumstances of the claimant which has had the effect of increasing the quantum of damages likely to be determined at the trial.
Also, the court will not order more than what it thinks is a reasonable proportion of the likely judgment which would be reached at trial. It will also consider any set-off, contributory negligence or counterclaim available to the defendant debtor. If it is the case that those defences have a reasonable chance of success at the trial, this factor is likely to affect the court discretion’s on the quantum of an interim payment, or whether it is inclined to make an interim order at all, as such sums affect the prospects of recovery of the creditor at the trial. Sums ordered to be paid by the court are sums on the account, and not final determinations of liability against the debtor. If it eventuates that the debtor has overpaid the creditor, the creditor will in all likelihood be ordered to repay the defendant debtor the excess at the trial.
In court claims for debt recovery, creditors are in a position to apply for relief at an early stage of the proceedings in suitable cases. The overall liability of the debtor may be reduced as a result of such an application. Furthermore, it may be the starting point to settling the negotiations without further need for litigation to obtain payment of the judgment debt.
Drukker Solicitors are business lawyers. We provide legal advice in respect of litigation & disputes.