Textual Amendments
F1Sch. 1 (with appendices 1 and 2) substituted (1.1.1994) for Sch. 1 (with appendix) by S.I. 1993/1956, para. 2, Sch.1.
Sch. 1 (except rule 29.10) excluded (1.4.1997) by S.I. 1997/291, rule 3.24, Sch. 3
Sch. 1 extended (14.2.2000) by S.I. 2000/124, reg. 30(5)
36.9.(1)In an action to which this Part applies, a pursuer may, at any time after defences have been lodged, apply by motion for an order for interim payment of damages to him by the defender or, where there are two or more of them, by any one or more of them.
(2)The pursuer shall intimate a motion under paragraph (1) to every other party on a period of notice of 14 days.
(3)On a motion under paragraph (1), the sheriff may, if satisfied that—
(a)the defender has admitted liability to the pursuer in the action, or
(b)if the action proceeded to proof, the pursuer would succeed in the action on the question of liability without any substantial finding of contributory negligence on his part, or on the part of any person in respect of whose injury or death the claim of the pursuer arises, and would obtain decree for damages against any defender,
ordain that defender to make an interim payment to the pursuer of such amount as the sheriff thinks fit, not exceeding a reasonable proportion of the damages which, in the opinion of the sheriff, are likely to be recovered by the pursuer.
(4)Any such payment may be ordered to be made in one lump sum or otherwise as the sheriff thinks fit.
(5)No order shall be made against a defender under this rule unless it appears to the sheriff that the defender is—
(a)a person who is insured in respect of the claim of the pursuer;
(b)a public authority; F2. . .
(c)a person whose means and resources are such as to enable him to make the interim payment. [F3; or
(d)the person's liability will be met by–
(i)an insurer under section 151 of the Road Traffic Act 1988 F4; or
(ii)an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself.]
(6)Notwithstanding the grant or refusal of a motion for an interim payment, a subsequent motion may be made where there has been a change of circumstances.
(7)Subject to Part IV (management of damages payable to persons under legal disability), an interim payment shall be made to the pursuer unless the sheriff otherwise directs.
(8)This rule shall, with the necessary modifications, apply to a counterclaim for damages for personal injuries made by a defender as it applies to an action in which the pursuer may apply for an order for interim payment of damages.
Textual Amendments
F2Word in Sch. 1 rule 36.9(5)(b) omitted (21.5.2004) by virtue of Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2004 (S.S.I. 2004/197), art. 2(13)(a)
F3Sch. 1 rule 36.9(5)(d) and word inserted (21.5.2004) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2004 (S.S.I. 2004/197), art. 2(13)(b)
F41988 c. 52; section 151 repealed in part by the Road Traffic Act 1991 (c. 40), Schedule 8.