A plaintiff facing medical bills or lost income wants money now, not in two years. Some jurisdictions provide for an “interim payment” on account of damages. The National Court Rules 1983 do not.
Searching the Rules for a general power to order a defendant to pay a sum on account of damages before liability is determined produces nothing. Order 14 — Miscellaneous Powers of Court — deals with accounts, interim preservation, receivers, security, disposal of land, contempt, interpleader and arbitration. Interim payment is not among them.
That is a real gap, and it is worth stating plainly rather than implying a remedy that does not exist. What follows are the routes that do exist.
Route one — Order 9 Rule 30
(1) Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, direct the entry of any judgement or make any order to which the applicant is entitled on the admissions.
(2) The Court may do so notwithstanding that other questions in the proceedings have not been determined.
Judgment may be entered on what has been admitted while the rest of the case continues. Where a defendant admits owing K80,000 but disputes a further K150,000, judgment for the admitted sum can be entered and enforced now.
Admissions come from three places: the defence; a failure to traverse, since under Order 8 Rule 21(1) an allegation not traversed stands admitted; and a failure to respond to a notice to admit facts within 14 days.
The words “or otherwise” are wide enough to reach admissions in correspondence and in affidavits, provided they are clear.
Route two — Order 12 Rule 38
Summary judgment is available where there is no defence to the whole or part of a claim. It produces a judgment, not an interim payment — but the practical effect for a plaintiff is the same, and better, because it is final.
Note the interaction with the pleading timetable: under Order 8 Rule 4(2), where a plaintiff serves a motion for summary judgment before the defence is filed, the ordinary time for the defence does not apply, and if the motion does not dispose of everything the Court fixes a fresh time.
Where liability is clear but damages need assessment, ask for judgment on liability with damages to be assessed. That is also what a default judgment for unliquidated damages produces. The assessment then proceeds under the ordinary process, and the plaintiff is no longer at risk on liability.
A further possibility is separate decision of a question under Order 10 Division 4 — liability tried first, quantum later.
Route three — Order 14 Rules 12 to 14
Rule 12 — where the property is more than sufficient to answer the claims on it for which provision ought to be made, the Court may allow part of the property to be conveyed, transferred or delivered to any person having an interest.
Rule 13 — where the whole or part of the income is not required to answer the claims, the Court may allow that income to be paid, during such period as the Court may determine, to all or any of the persons having an interest.
Rule 14 — where two or more persons are entitled to share in a fund, the Court may order immediate payment to any of them of his share without reserving any part to meet the subsequent costs of ascertaining any other.
They apply only where the proceedings concern property or a fund. They are not available in an ordinary damages claim, because there is no fund to distribute.
Where they do apply — estates, trusts, partnership dissolutions, disputed sale proceeds — they are valuable, and under-used. See preserving property until trial.
Route four — the defendant’s move
A defendant may bring money into Court in answer to a cause of action. If the plaintiff accepts within 14 days, they are entitled to receive payment without any order under Rule 76(3), subject to the Rule 78 cases where an order is required.
It depends entirely on the defendant choosing to pay in. A plaintiff cannot compel it.
And acceptance is in satisfaction of the cause of action. It is not an instalment — under Rule 76(1) the proceedings are stayed as to that cause of action. Accepting ends that part of the claim.
Where the plaintiff is a disabled person, Rule 78(1)(g) means the money cannot be paid out except by order — and under Order 5 Rules 30 and 32 the Court controls how it is held.
What to do instead
- Serve a notice to admit facts early. Silence for 14 days admits the facts, and Order 9 Rule 30 then allows judgment on the admissions while the rest of the case continues.
- Apply for judgment on liability where liability is not seriously contested, leaving damages to be assessed.
- Consider mediation under the Alternative Dispute Resolution Rules 2022. A negotiated interim payment is available by agreement even though the Court cannot order one.
- Press for an early trial date or a split trial at the listings mention.
Where the State is the defendant, note that even a final judgment is not enforced in the ordinary way: under the Claims By and Against the State Act 1996 there is no execution against the State, and satisfaction follows the statutory certificate process. See how a judgment against the State is paid.
Sources
- National Court Rules 1983 — O 5 rr 30, 32; O 8 rr 4, 21, Div 6, rr 76, 78; O 9 rr 29, 30; O 10 Div 4; O 12 rr 25–38; O 14 rr 12–14
- Alternative Dispute Resolution Rules 2022
- Claims By and Against the State Act 1996 — ss 13, 14
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.