When you have you have a good personal injury case, you normally associate it with having to wait for your damages.
The problem that this causes practically is that you will be losing wages, quite possibly and bills maybe mounting because of your injuries.
I assume that this is why many of the offers that you currently see advertised by solicitors of payments up front may seem attractive to needy clients.
It should be remembered however that an interim payment should be obtained in any event if the Claimant’s case is a strong one. In road traffic accidents run under the MOJ portal the Defendants are required to make interim payments if quantum cannot be agreed.
In other cases, if you have a strong case, an interim payment should be made by the Defendants.
In higher value cases, interim payments are generally more easily and readily obtained provided that there is good communication budgeting and planning. The Defendants have seen that by making interim payments facilitating rehabilitation this allows the Claimant to make the best recovery and this means that the total spent from there might be lessened.
In the vast majority of cases however, sadly, without the co-operation of the Defendant such interim payments cannot be compelled as easily as they should be. This causes frustration for everybody involved and not infrequently it can cause acute financial problems for the Claimant and their family.
I, rather simplistically, take the view that the money your case is worth, is actually your money, not the Defendants. I think that the Defendants representatives, whether they be insurers, claims handlers or Solicitors ought to bear this mind. Funds can and should be released simply and frankly for no other reason than ultimately, they are your damages in any event.
There are of course risks with this and it is never sensible to access too much money too soon (no one would want to find themselves ultimately in a position where they had to repay money to the Defendants) but it does amaze me how reluctant some Defendant insurers and solicitors can be on the point and sometimes regrettably they appear to be given judicial support for their delay/procrastination.
I have a current recent example which highlight the problem. In one case the Defendant had agreed (after I had threatened to issue an application) an interim payment of £5,000. Clearly (see CPR 40.11) payment within a reasonable time frame should be 14 days. When coincidentally the case came before the Court for a management hearing (and notwithstanding the fact that the Defendant had agreed the interim payment and confirmed the same in writing and the documents before the court) 15 days later the judge not only refused to make an order for the interim payment but admonished the Claimant and gave very clear guidance that an application to compel the Defendants would be premature if issued within a further 14 days i.e. the judge endorsed the Defendants procrastination of over a month (14 days from my initial request, 14 days from their concession of payment, a further 14 days from the Court hearing) I wonder if my client’s mortgagee would be quite so willing to defer payments without penalising my client with penalty charges and or interest.
A second fine example of judicial buck passing and Defendants frank stupidity is in a fatal road traffic accident I am handling. Not for the first time the Defendants bleated on that whilst they were charged with a criminal prosecution the civil case should be stayed (as though the Defendants human rights ought to take supremacy over the rights of the deceased person or their surviving family).
Surprisingly the Solicitors who had the case before me agreed with the Defendants stance. I did not. Having issued proceedings obtained judgment and requested an interim payment and then applied to the Court for an interim payment the Defendants cross applied seeking a stay on the case, pending the final hearing in the criminal proceedings and then belatedly applied for judgment to be set aside (in the meantime the Defendants actually pleaded guilty to causing death by careless driving!)
For reasons beyond logical comprehension the judge who found himself presented with the various competing applications delayed the interim payment because he suggested that the 45 minutes he had to deal with the complex applications was insufficient.
Maybe it is me, but sometimes if something is blindingly obvious, then all parties and the Court in particular ought to grasp the nettle. The Defendants, their insurers and the judiciary ought to put themselves in the real world and understand the ramifications of their delay in making such payment.