Practice

Interim payment to insolvent claimant - potential irrecoverability of sum found overpaid after final money judgment - overriding objective to achieve equal footing of parties requiring potential irrecoverability to be taken into account in calculating interim paymentHarmon Cfem Facades (UK) Ltd (in liquidation) v Corporate Officer of the House of Commons: QBD: (Judge Humphrey Lloyd QC sitting as a High Court judge): 29 June 2000

The claimant, after commencing proceedings for damages for the defendant's failure to award a building contract to it, went into a voluntary liquidation.

The defendant was held liable in damages.

Pending assessment of damages, the claimant sought an interim payment.The defendant resisted the application, contending that any money paid to the claimant would be used by the liquidator for the administration of the liquidation and any excess found as overpaid after the final money judgment could not be recovered from the claimant.Richard Fernyhough QC and Michael Bowsher (instructed by Wragge & Co, Birmingham) for the claimant.

Andrew White QC and Robert Clay (instructed by Berwin Leighton) for the defendant.Held, ordering payment in part, that the pre-CPR case law was not binding the court for interpreting CPR rr.

25.7 and 25.8 and exercising discretion under them, and the court should interpret and apply those rules in accordance with the overriding objective, as required by r.1.2, that the parties be on an equal footing; that, while depriving a party of money which it should rightfully have from another would not place the parties on an equal footing, it would also be wrong to order an interim payment to a party who might not be able to repay it if any adjustment were required under r.25.8; and that the court would therefore give a nominal discount against an amount which the claimant would not recover in money judgment with further discount in respect an amount which might be irrecoverable under r.25.8, and order payment of the discounted sum.