Payment into Court in UK Law

Subject to the bankruptcy rules relating to fraudulent preferences, there has never been any restriction upon a debtor preferring a particular creditor if he wishes to do so, and I am not clear why it should be thought desirable that a creditor who has a valid claim but is kept out of his money by a defence which ultimately fails should be deprived of the advantage which he gains by a payment into court.

The second is that the money in court remains, as it were, an asset of the defendant which, on his bankruptcy, forms part of his property available for distribution. But in my judgment a defendant paying into court under Order 22, rule 1, parts outright with his money. I doubt whether it can be said that the Accountant-General is a trustee in whose hands his money can be traced. Nor is there a "debt" or chose in action in the accepted sense of the word.

Before Mrs. justice Heilbron the wife's application for costs was baaed upon a letter which had been written by the wife's solicitors to the husband's solicitors offering something substantially more than £10,000. Mrs. Justice Heilbron, despite that letter being drawn to her attention, made no order as to costs.

The second is that at no stage did Mrs Painting manifest any willingness to negotiate or to put forward a counter-proposal to the Part 36 payment. However to contest and lose an issue of exaggeration without having made ever a counter-proposal is a matter of some significance in this kind of litigation. It must not be assumed that beating a Part 36 payment is conclusive. It is a factor and will often be conclusive, but one has to have regard to all the circumstances of the case.

In doing this the new Rules are reflecting a change of practice which has already started. It is now clear that a too robust application of the "follow the event principle" encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take. If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your effort to do so.

Be that as it may, a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the Court.