The Rules of the Supreme Court (Amendment No.3) 1977

4.  Order 29 shall be amended as follows:—

(1) For the title of Part II there shall be substituted—

“II. INTERIM PAYMENTS IN ACTIONS FOR PERSONAL INJURIES”

(2) At the end there shall be added the following Part:—

“III INTERIM PAYMENTS IN ACTIONS FOR POSSESSION OF LAND

Order for interim payment

18.— (1) Where in an action in which there is a claim for possession of land it appears to the Court that, in the event of a final judgment or order being given or made in favour of the plaintiff, 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 pendently of the action, the Court may, on the application of the plaintiff, 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 a payment (in this rule referred to as an “interim payment”) on account of that sum.

(2) No such order for an interim payment shall be made unless it appears to the Court that, even if a final judgment or order were given or made in favour of the defendant, he would still be under an obligation to pay the plaintiff for his use and occupation of the land, whether by way of rent, mesne profits or otherwise.

(3) An order under this rule may be for the payment of—

(a) a sum not exceeding the amount which, if a final judgment or order were given or made in favour of the defendant, would be payable by him in respect of his use and occupation of the land up to the date of the order, or

(b) periodical payments during the pendently of the action, or

(c) a combination of both.

(4) Subject to Order 80, rule 12, the amount of any interim payment ordered to be made shall be paid to the plaintiff unless the order provides for it to be paid into court; and when the amount is paid into court, the Court may, on the ex parte application of the plaintiff, order the whole or any part of it to be paid out to him at such time or times as the Court thinks fit.

Application for interim payment

19.— (1) Subject to paragraph (2), an application for an order under rule 18 may be made—

(a) in an action begun by writ, by summons issued at any time after a defence has been served or after the time for serving a defence has expired;

(b) in an action begun by originating summons, in the originating summons or by summons returnable on or after the first hearing of the originating summons.

(2) A plaintiff who applies for summary judgment under Order 14, rule 2, may include in his summons an application for an order under rule 18 in the event of the defendant's being given leave to defend.

(3) An application for an order under rule 18 shall be supported by an affidavit, which must—

(i) verify the material facts on which the application is based;

(ii) state first the amount, expressed as a sum of money or a periodic payment, which, (if a final judgment or order were made or given in favour of the plaintiff), the defendant would, in the belief of the deponent, be held liable to pay in respect of his use and occupation of the land during the pendently of the action, and, secondly, whether the liability arises by virtue of a lease or tenancy agreement or otherwise;

(iii) state that, in the belief of the deponent, even if a final judgment or order were given or made in favour of the defendant, he would still be under an obligation to pay the plaintiff for use and occupation of the land during the pendently of the action;

(iv) state the amount claimed and how it is calculated.

(4) The summons and a copy of the affidavit in support must be served on the defendant against whom the order is sought not less than 4 clear days (or, if the order is sought in a summons for summary judgment under Order 14, 10 clear days) before the return day.

(5) Notwithstanding the making or refusal of an order for interim payment, a second or subsequent application may be made upon cause shown.

(6) An order for an interim payment, may, on the application of a party to the action, be varied or discharged by the Court.

Directions on application under rule 19

20.   On hearing an application under rule 19, whether or not the Court makes an order for interim payment, the Court may give directions as to the further conduct of the action, and, so far as may be applicable. Order 25, rules 2, 6 and 7, shall, with the omission of so much of rule 7(1) as requires the parties to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if the application were a summons for directions, and, in particular, the Court may order an early trial of the action.

Interim payment in respect of counterclaim

21.   A defendant who makes a counterclaim for possession of land may apply for an order requiring the plaintiff to make an interim payment and this Part of this Order shall apply accordingly with the necessary modifications.”