As most of our chronic pain clients begin their claims with other law firms, we have gained a unique insight into recurring poor practices. A common shortcoming we have discovered is that many personal injury law firms fail to request interim payments regularly, or even at all. This is always unacceptable, particularly for people suffering chronic pain who are often unable to work, pay their bills, pay for treatment, or purchase aids and equipment to improve their quality of life.
What is an interim payment?
A personal injury interim payment is a payment on account of your total compensation, paid before you reach a final settlement. Some interim payments are made for a particular purpose, such as paying for:
- private medical treatment or rehabilitation;
- at-home nursing care or other domestic support;
- specialist aids, equipment, and adaptations.
Otherwise, interim payments are made on account of the whole claim and set off against the final settlement figure. Broadly speaking, if the particular loss or expense is agreed by the other side and can be quantified (ie you have quotes or receipts), the interim payment will be made specifically for that purpose. In other cases, payments are made on account of the whole claim. Interim payments for lost earnings inevitably fall into the latter category.
If an interim payment is required for treatment, rehabilitation, care, aids, equipment, or adaptations, consideration should always first be given to obtaining an ‘immediate needs assessment’ under the Rehabilitation Code. Once an independent case manager is appointed jointly by the parties, payments for this type of ‘rehabilitation’ expense should be paid immediately by the other side upon the case manager’s recommendation.
How do I get an interim payment?
Obtaining an interim payment is not something you should have to raise with your solicitor. Instead, your solicitor should raise and discuss that with you from a very early stage of your claim. Wherever possible, they should be proactive in obtaining interim payments for you, or if that is not possible, provide you with a clear explanation of why.
The starting point when considering an interim payment is always liability. It stands to reason that if the other side dispute liability, ie deny your accident was their fault, they are unlikely to volunteer compensation payments. But where liability is admitted, it should be possible to obtain interim payments without involving the court. If the other side refuses to make a payment, your solicitor should discuss with you the merits of an application to the court.
Where an application to the court is required, the court rules provide that certain conditions must be satisfied before the court can order an interim payment. To prove to the court that each of these conditions has been satisfied, you will need to produce evidence. As the payment you are requesting is interim, by definition, your claim is not ready for settlement – probably because your medical and/or other evidence is not yet finalised. Nevertheless, if your application is to succeed, it must be supported with the evidence you do have.
The conditions to be satisfied include:
- showing that the other side has either admitted liability, or that the claim is likely to succeed and “if the claim went to trial, the claimant would obtain judgment for a substantial amount of money”.
- establishing the need for an interim payment;
- demonstrating that the amount requested by way of interim payment is reasonable, and less than the likely total compensation.
How much can I get as an interim payment?
There is no limit on the size of an interim payment that the court can order, but it must be no more than a reasonable proportion of your total compensation.
Do interim payments affect the final compensation I receive?
The total interim payments you receive will be taken into account in your final compensation payment. While this means that the final payment will be lower, you will not have received any less compensation overall. Receiving some of your compensation upfront is usually essential to enable you to keep your head above water financially until the claim settles.
Do interim payments affect my benefits entitlement?
Interim payments can affect your entitlement to means-tested benefits. For that reason, before requesting an interim payment, we will always discuss your benefits situation with you. An arrangement can be put in place – called a personal injury trust – to ensure your interim and final compensation payments do not affect your current benefits, or your entitlement to benefits in the future.
It is also important to note that any interim payment will be reduced by the total amount of benefits you have already received as a result of your accident. This is because the other side must repay those benefits to the Department for Work and Pensions. However, we will take this into consideration when discussing with you the amount of the interim payment to request.