Thursday, September 28th, 2017
In our news section previously, we reported that in a number of cases the courts had ordered interim payments of expenses. In the latest judgment, Lord Tyre (in the case of Kidd v Burness Paull) ordered an interim payment of the sum of £1m within fourteen days of his interlocutor by way of interim expenses.
The judgment acknowledges not only that such motions are competent, but that there is no reason as to why they should not be generally made. Although this was a commercial case, there is no why the principle does not apply in non commercial cases, and as pointed out by Andrew Smith QC in a previous note on the subject, there are arguably better reasons why this approach should be more common in clinical negligence and personal injury claims. The sums involved in the Kidd case are high, but as with most commercial cases, there is no complexity in the case itself either factually or procedurally. Accordingly, with complex clinical negligence cases or personal injury claims, the likelihood is that accounts of expenses will take a significant time to prepare, compared to what are essentially straight forward commercial cases when one might expect preparation of the account to be reasonably swift.
Solicitors are encouraged to consider, when they obtain an award of expenses in any case, enrolling a motion for an interim payment hard on the heels of the interlocutors on expenses. The practice is now becoming common in commercial actions, following the decisions referred to in the previous paper. They should be made as the default position in all cases.
Andrew Smith QC of Compass Chambers appeared on behalf of the pursuer in Kidd v Burness Paull and a copy of the judgment can be found here.
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