Interim Payments in Cases Where There Are Multiple Defendants
12/14/2021
The case of Buttar Construction Limited v Arshdeep [2021] EWCA Civ 1408 provides an interesting analysis by the Court of Appeal on the matter of interim payments when a case involves multiple Defendants and liability for the accident is disputed.
Background to the decision
The Claimant, C, was working as a labourer on a building site. Following an accident that led to bricks and blocks stored at height falling on him, he was left with catastrophic injuries.
C had been employed by the second Defendant, D2, which was engaged by D4 as an independent brickwork contractor. The first and third Defendants, D1 and D3 were people who controlled D2 and D4 respectively.
D2 had carried out a risk assessment and directed that the bricks and blocks be stored on a secured platform, an instruction that was ignored. Instead, the bricks and blocks were stored on hardboard sheets spread across joists above head height. Acting on instructions from D2, C had been passing bricks and blocks to a colleague above when the joists and supporting walls collapsed and fell. This led to C being crushed.
D2 admitted it owed a duty of care to C but said D4 was responsible for the joists that collapsed and were therefore liable. D4 denied any duty and stated D2 was responsible for the accident.
In need of rehabilitation and without the funds to pay for it, C sought against D4 and D2 under r.25.7(1)(e), which applied when there were two or more defendants, and the order was sought against one or more of them. D2 had employers' liability insurance and D4 had public liability insurance at the time of the accident. In each case, the insurers had reserved their rights.
At first instance, the Judge was satisfied that if he was dealing with a case at trial with the current evidence and pleadings, more likely than not, judgment would be entered against D2 or D4 but he could not conclusively say which. He was satisfied that the damages would be substantial. The Judge also concluded that D4 and D2 were insured in respect of the claim, even though one or other of the insurers might repudiate their policy. He decided that the pre-conditions in r.25.7(1)(e) were satisfied and exercised his discretion to order that D4 and D2 each made an interim payment of £150,000.
D4 appealed.
The Court of Appeal’s decision
In rejecting the appeal, the Court held:
- The Judge at first instance had been entitled to conduct a mini-trial.
- It was clear from the opening words of r.25.7(1), which authorised the Court to make an order for an interim payment "where any of the following conditions are satisfied", and the absence of any words requiring a sequential approach to be adopted meant that C had been entitled to make a claim under the aforementioned Rule. The judge had correctly noted the distinction between r.25.7(1)(c) and r.25.7(1)(e) and that both could not be satisfied.
- If the Judge at first instance could not satisfactorily decide whether C would succeed in Court against D2 alone or D2 and D4 then it could not determine which of the Defendants would become subject to judgement and therefore the requirement in r.27.7(1)(e)(i) was clearly met.
The Court endorsed the guidance to r.25.7(1)(c) in Revenue and Customs Commissioners v GKN Group [2012] EWCA Civ 57, [2012] 1 W.L.R. 2375, [2012] 1 WLUK 672, subject to the qualification that the Rule did not require the Judge to be satisfied that C would obtain judgment for a substantial amount of money from the Defendant at trial and an order for interim payment. The prospect of an interim payment might be a material consideration for the Judge when exercising their discretion, but it was not a pre-condition.
Comment
In claims involving serious injury, both parties are required under the Pre-Action Protocol to put the rehabilitation needs of the Claimant at the forefront of their considerations. This case is a particularly useful judgment to refer to regarding the application of interim payments in cases where there are multiple Defendants and liability is contested.
At Zurich we have a team of in-house rehabilitation specialists, including mental health nurses, physiotherapists, and medical practitioners that offer support and guidance to employers and employees to help the latter recover and return quickly and safely to work. To find out more about our integrated claims and rehabilitation model please contact your dedicated Claims Relationship Manager or your claims handling team.
