Felix v Shiva

I will ask Lord Justice Eveleigh to deliver the first Judgment.

This is an appeal from the Judgment of His Honour Judge Honig made on the 4th March 1982, when he determined that he had jurisdiction in this particular case to make an Order for interim payment of money.

The claim was a claim for possession by a landlord, and coupled with that claim was a claim for arrears of rent—and we have not had the actual pleadings but I assume for mesne profits also.

An application was made in the Bloomsbury and Marylebone County Court by the landlord for an interim payment on account of the rent, or mesne profits.

On the 4th March 1982 the learned Judge ordered the Defendant to make an interim payment to the Plaintiff for £4,000 within 21 days, and it is against that Order that the Defendant now appeals.

This Court has been concerned with a very short point of law, namely, has the County Court power to make such an Order? The learned Judge considered that he had jurisdiction, or the power so to order, because there was a similar power in the High Court which he regarded as being available to the County Court by virtue of Section 103 of the County Courts Act, 1959. That Section reads: "In any case not expressly provided for by or in pursuance of the Act, the general principles of practice in the High Court may be adopted and applied to proceedings in a County Court".

The relevant Order in the High Court is Order 29, where, in Part II of that Order the question of interim payment is dealt with and a procedure is laid down for claiming an interim payment.

The particular rule under which this Application would be made is Order 29, Rules 10 and 12. Rule 10 reads: "The Plaintiff may at any time after the Writ has been served on a Defendant, and the time limited for him to acknowledge service has expired, apply to the Court for an Order requiring that Defendant to make an interim payment".

Rule 12 reads: "If, on the hearing of an application under Rule 10, the Court is satisfied—(b) that the Plaintiff's action includes a claim for possession of land, and if the action proceeded to trial, the Defendant would be held liable to pay to the Plaintiff a sum of money in respect of the Defendant's use and occupation of the land during the pendency of the action, even if a final Judgment or Order were given or made in favour of the Defendant; or (c) that, if the action proceeded to trial, the Plaintiff would obtain Judgment against the Defendant for a substantial sum of money apart from any damages or costs, the Court may, if it thinks fit, and without prejudice to any contentions of the parties as to the nature or character of the sum to be paid by the Defendant, order the Defendant to make an interim payment of such amount as it thinks just, after taking into account any set-off, cross-claim or counterclaim on which the Defendant may be entitled to rely".

Argument was addressed to the learned Judge on behalf of the Defendant to the effect that Section 103 of the County Courts Act did not apply because the Order 29 provision for an interim payment could not be described as the general principles of practice in the High Court. Before the learned Judge, and here, we have heard argument as to what is meant by the expression "the general principles of practice". We have been referred to some cases which were quoted to us by Counsel as aids to understand the meaning of those words.

The words are ones which have given difficulty but they are not easily capable of further definition by a court, any more than the word "procedure" is. That too has given difficulty in deciding precisely what it means—though many of us, or many of those who have practised in the Courts perhaps by instinct recognise what is meant by "practice" as opposed to "procedure", when we come across it.

For my part, I would not approach this case by attempting any general definition of those words.

The power of the Court to order interim payment may, to some, be seen as a principle of practice. But to others, they may not—but whatever the words "principles or practice mean in Section 103 I do not think that they are apt to cover the power of the Court to make interim payments.

My reason for saying that is the legislation that has resulted in Order 29 of the High Court which has, in its turn, given the Court the power and set out the procedure for interim payments. That legislation is to be found in Section 20 of the Administration of Justice Act, 1969, Section 20 sub-section (1) of which reads: "The power to make rules of Court under Section 99 of the Judicature Act 1925, and the power to make County Court rules under Section 102 of the County Courts Act 1959, shall each include power by any such rule to make provision for enabling the Court in which any proceedings are pending, in such circumstances as may be specified in the rules, to make an Order requiring a party to the proceedings to make an interim payment of such amount as may be specified in the Order, either by payment into Court of (if the Order so provides) by paying it to another party to the proceedings".

As I have said, an Order was made in the High Court.

When the power of Section 20 was first invoked by the Rule Committee, it did so to provide for interim payment of damages in personal injury cases; subsequently the rules were extended to apply to a wider field of claims. But I do not think that without special statutory provision the Court did have the power to make an interim payment—at least it did not regard itself as having that power, that is clear.

Moreover the power to make rules of Court given by Section 99 of the Supreme Court of Judicature (Consolidation) Act 1925 was not regarded as giving the Committee power to provide for the Court to make interim payments. That seems to me to be a reasonable conclusion from the very fact that Parliament thought it necessary to enact Section 20 of the Act.

A similar approach was adopted in the case of Moore -v-Assignment Couriers Ltd. (1977) 1 WLR, at page 638. In that case the landlord had issued a Writ in the High Court and he claimed an interim payment of the rent. At that date the only power to entertain interim payments was contained in the rules relating to personal injury actions.

At page 645 Lord Justice Megaw said this: "Section 99 of the Supreme Court of Judicature (Consolidation) Act 1925 is the Section which primarily gives the Rule Committee its statutory power to make rules. Section 99 (1) provides 'Rules of Court may be made under this Act for the...