High Court gives guidance on filing evidence in response to interim payment applications

In the recent decision of Clair Sellar-Elliott v Sarah Howling [2016] EWHC 443 (QB) the High Court has provided guidance to defendants seeking to oppose interim payment applications.

Mr Justice Sweeney refused a Defendant’s appeal against an order that an interim payment be made to the Claimant, in the context of clinical negligence proceedings.

Liability had been admitted, but causation remained in dispute. Both parties had obtained permission to rely on expert medical evidence; the deadline for exchange being some six weeks after the date of the hearing of the interim payment application. The Claimant, however, had served her expert evidence in advance of the application.

The Defendant resisted the interim payment application, but did not serve any expert evidence in advance of the hearing. Instead, the Defendant sought to rely on two witness statements produced by her solicitor which stated that her instructed experts’ preliminary view supported her pleaded case.

The Defendant was ordered make an interim payment based partly on the strength of the Claimant’s evidence and the Defendant was refused permission to appeal.   

CPR 25.6 details the general procedure in relation to applications for interim payments.

Whilst CPR 25.6(3)(b) requires that an application must be supported by evidence, CPR 25.6(4)-(5) make it clear that there is no obligation on either the respondent or the applicant to file evidence.

The test that a claimant must meet to satisfy the Court that an interim payment can be ordered is that, on the balance of probabilities, the claimant will obtain judgment for a substantial sum of money from the defendant at trial.

The Claimant had served medical evidence in support of the application; the Defendant had responded with only limited evidence in the form of witness statements.

In the absence of any contrary evidence presented by the Defendant, it was held the master had been entitled to find that the Claimant's evidence was sufficiently convincing so that to conclude that the conditions in CPR 25.7(1)(c) were met, and therefore that an interim payment should be made.

Whilst this case relates to a clinical negligence claim, it provides a warning to insurers seeking to resist interim payment applications that sufficient evidence will need to be adduced in response to the claimant’s case. This highlights one of the potential benefits of instructing experts at an early stage of the claim, particularly if an interim payment application has been intimated.

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