The defendant had made a payment into court in the light of a joint experts meeting. In the light of the opinion of another surveyor, he sought leave to withdraw his notice of payment in. The plaintiff gave notice accepting the payment in on the same day as the defendant’s summons was delivered to the plaintiff’s solicitors.
Held: The plaintiff remained lawfully entitled to give notice of acceptance. He also held that the court had power to allow withdrawal of a notice of payment in even when the plaintiff has a right to accept it: ‘The second question is whether a court may allow withdrawal of a notice of payment in, if between the time when the defendant served his summons seeking leave to withdraw and the hearing of it the plaintiff has given notice of acceptance. The rules do not state that the issue of a summons for leave prevents the plaintiff from giving notice of acceptance. Rule 3(4) does provide that acceptance has the effect of staying the proceedings. I think that it would be most unfortunate if a plaintiff were able to defeat a defendant’s application for leave to withdraw a payment in by giving notice of acceptance before the defendant’s summons could be heard. Since the plaintiff’s acceptance would not have terminated the action, but merely stayed it, I think that the court may notionally remove the stay and proceed to hear the application. A plaintiff’s acceptance does not prevent the court from allowing a defendant to withdraw, but is obviously an important consideration to be taken into account in deciding whether he should be given leave to do so.’
(1987) 7 Con LR 90
Cited – Cumper v Pothecary 1941
The court considered the nature of a payment into court: ‘there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, . .
Approved – Flynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.199957