Tractors and hurdles: Seeking interim payments in disputed liability cases

November 5, 2021

Will Waldron QC

Interim Payment Applications 

A recent interim payment application that came before Cotter J in the High Court is worth noting as a practical reminder that, where liability is contested, the hurdle to getting your hands on money can be more difficult than you might think.

On the face of it, Stephens v Stephens ([2021] 10 WLUK 273) looks like it ought to be a home win for the Claimant. However, that was not enough for him to persuade the court that an interim payment should be awarded ahead of a contested liability trial, even though the Claimant had been a pedestrian, standing out of the way on a grass verge in a country lane, who was hit by a seeding machine being towed by a tractor, the driver of which had apparently not seen two people ahead of him at all, either as he approached them or when they stepped off the road and onto the verge, out of his way.

The accident took place at 9pm at night on 13th August 2019, described as ‘twilight’ in the summary. In case you were wondering, I checked up and sunset would have been around 20.30 that day in London (the digest, which is all that is available at the time of writing, does not indicate where the accident happened but sunset in Carlisle would have been 20.50, in Manchester 20.40 and Southampton 20.29 ). Thus, lighting up time was 30 minutes later and the further north the incident occurred, the more daylight would have been left. Be that as it may, the Claimant and his wife were out for a walk when they became aware of an approaching tractor. They stepped onto the verge to get out of the way. The tractor was towing a seeding machine, which was wider than the tractor itself. The machine hit the Claimant after the tractor had passed by.

The Defendant accepted that he had not seen the pedestrians but denied he had been negligent. He said he had not been driving quickly (disputed by the Claimant). He said he had kept a proper lookout for pedestrians on the lane, the lights on the tractor were on, he had not seen the Claimant and his wife prior to the accident, that the probable reason was that they had moved on to the verge and were obscured by vegetation and a hedge, they were not illuminated by the light on the tractor and/or they were wearing dark clothing. He maintained that he was correctly positioned in the middle of the lane.

Had I been advising the Claimant in the case I would have ventured the opinion that we would probably win at trial. Importantly, the driver was specifically aware that he might meet pedestrians on the lane, that the seeding machine was wider than his tractor and must have been overhanging the verge and that at ‘twilight’ it might be trickier to pick people out. He should have been travelling along a narrow lane very slowly indeed because, as he would have to concede, the verge is exactly where pedestrians would need to stand to get out of his way given the size of the tractor and the machine it was pulling. Add to that the Defendant’s apparent excuse for not seeing the human hazards he was approaching was that they must have, effectively, been hiding in the vegetation and behind a hedge and I would feel confident in saying that we would probably secure primary liability. That though, was not enough to get home on the interim payment application.

Part 25.7(1)(c) states that the court must be satisfied that, if the claim went to trial, “the Claimant would obtain judgment for a substantial amount of money”. This, said Cotter J, made a critical difference to the outcome of the application. A judge had to be satisfied that the Claimant would in fact succeed and not merely that it was likely that he would succeed. The first thing a judge had to do was to put himself or herself in the hypothetical position of being the trial judge and then ask whether they were satisfied to the civil standard that on the material before them the Claimant would obtain judgment for a substantial amount of money from the Defendant. The first interim payment hearing must not be a mini trial.

In the current case, not all the evidence was available. For example, there might be accident reconstruction evidence. The judge was particularly conscious of that fact and the fact that such evidence as was available had not been tested through the trial process.  Of course, this latter fact will inevitably be the case at the interim payment stage when liability is in dispute. That alone can rarely be an insurmountable hurdle to Claimants. However, Cotter J felt that the defences raised prevented the Claimant from being able to say not only that he was likely to win the case but, on the balance of probability, he would win it.

This distinction, to my mind, requires one to engage in some mental gymnastics.  A court deciding that, on a balance of probabilities, a Claimant is likely to establish liability against a Defendant and yet, using the same standard of proof, concluding at the interim application stage that he or she probably would not obtain judgment for a substantial amount of money might appear contradictory. However, it is the use of the word “would” rather than the phrase “would be likely to” that creates the additional hurdle. Cotter J said that the court was not satisfied that the Defendant’s arguments were sufficiently weak to get the Claimant where he needed to be.  He described the evidential hurdle as “high”. By a very narrow margin and after careful consideration, the high hurdle had not been satisfied.

The judge’s analysis might suggest that the critical question in an interim payment application in such cases might be, in fact, whether any particular defence mounted had any realistic prospect of success (as opposed to being fanciful).  If so, the high hurdle might prove tricky to overcome. However, perhaps the better interpretation might be that, in fact, each case and each defence mounted is ‘fact sensitive’.

Ultimately, the outcome of applications such as this may rest upon the view a judge is willing or able to take of the evidence in any particular case.  For example, met with a similar set of circumstances but with the advantage of an expert report for the Claimant stating that the overhang of the seeding machine must have placed the tractor to its nearside and not in the centre of the lane; or photographs that showed that any pedestrian would not have been obscured by hedges; or by a robust statement from the Claimant that he had stood back as far as he could go and the driver should have been able to see him both on the tractor’s approach and when he was standing on the verge; a judge might be more willing to say that the high hurdle had been overcome.  Incidentally, there is no criticism either intended or implied about how the Claimant’s case here was presented. I am simply highlighting the fact that, in some cases, it might be possible to obtain evidence to show that defences that look reasonable are, in fact, makeweight. In Stephens, clearly that was not possible and I suspect sight of the full judgment would make it obvious why.

I recall some years ago a case in which multiple defendants all blamed each other for an accident that had occurred when an on-coming driver had swerved to avoid a stray sheep on a country road at night and rendered the Claimant tetraplegic.  It was not possible to say that the defences were wholly fanciful but, equally, it was pretty obvious that the Defendants were throwing the kitchen sink at it in the hope of, at the least, buying time and hoping something stuck. The District Judge declined to enter judgment or award an interim payment. Given the circumstances, we could not appeal and no further evidence would have helped us. About 6 months later, as was always going to be the case, the other driver conceded liability. The ultimate outcome was that the Defendant probably did somewhat worse further down the line than might have been the case had a more sensible approach been taken. Moral of the story – improbable defences remain improbable and insurers usually suffer for early lack of realism.

So, the lesson from Stephens must be that careful analysis of the particular circumstances of the case is essential before making an application for an interim payment in catastrophic injury claims where liability is hotly disputed.  Some potential difficulties might be overcome by securing further evidence – either expert or lay. I suggest that an early conference with Counsel would be a sensible approach to take.