Malignant mesothelioma - interim payments - codefendants - no need to establish liability of individual defendant

D's wife applied for an interim payment in action for compensation following D's death as a result of malignant mesothelioma. D had been employed by T to remove asbestos lagged piping at ICI's premises. ICI denied liability and argued that in order to obtain an interim payment against them, D had to show that judgment would be obtained against them and not merely against either defendant, Ricci Burns Ltd v Toole (Patrick) [1989] 1 W.L.R. 993, [1990] C.L.Y. 3707 cited. D argued that under the Civil Procedure Rules 1998 Part 25 r.25.7(3), it was only necessary to show that judgment would be obtained for substantial damages against at least one defendant for an interim payment to be made provided that both defendants were insured. Both ICI and T argued that despite having a policy of insurance, T was not insured because the insurance company was in liquidation.

Held, granting an order for interim payment, that although ICI may have had the prospect of a possible successful defence, there was no evidence in that regard and it was not appropriate for the court to determine that issue on an interim payment application. T was insured, since there was a policy of insurance in existence and an industry backed scheme was being put in place to meet T's liability, albeit with some delay. Although under the Rules of the Supreme Court 1965 Ord.29 r.11 an interim payment could not be made against a defendant who did not appear to be liable, Part 25 of the 1998 Rules provided that such payment could be made "even if the court has not yet determined which of them is liable".

"Current Law" November 2001