A defendant who accepts he owes something, but not everything claimed, has a tool the Regulation provides and few litigants use. Money paid into court shifts the risk of costs onto the complainant.
The power
Subject to this Regulation, money may be paid into Court, and any such payment or any tender of a sum of money, may be relied on as a defence to any complaint under the Act for an assault or sum of money due or to any claim or set-off.
Section 278(1)(b) and (c) of the Act authorise the Regulation to provide for payment into court and for tender before the complaint as a defence. The scheme borrows from the National Court’s payment-in rules and does the same work: it lets a defendant say “this much is fair; if you want more, you litigate at your own risk”.
How to do it
(1) Where the defendant wishes to pay money into Court, he shall pay the money at least 24 hours before the time fixed for the return of the summons, together with the cost of issuing and serving the summons and, if the summons was prepared by a lawyer, a further sum for professional costs.
(2) After payment in the defendant shall, without delay, send to the complainant notice of the payment in Form 6.
(3) If the complainant does not receive notice before the sitting at which the summons is returnable, the Court may order the defendant to pay additional costs the complainant properly incurred in preparing for the hearing and attending.
| Step | Regulation |
|---|---|
| Pay the sum, plus the summons and service costs, to the Clerk at least 24 hours before the return date | reg 30(1) |
| Obtain the Clerk’s acknowledgement in Form 5 | reg 18 |
| Send the complainant notice in Form 6, stating whether liability is denied | regs 30(2), 33 |
| Serve the special defence notice under reg 24 as well, since payment into court is one of the listed defences | reg 24(1)(g) |
| Attend on the return date unless the complainant has accepted | reg 34 |
With or without a denial of liability
Regulation 33 lets a defendant pay in with a denial of liability, by lodging a Form 6 notice with the Clerk and telling the complainant that the payment is made without admitting liability. That is the usual course where the defendant disputes the claim but wants to cap his exposure. A payment in without denial is an admission that at least that much is owed, and regulation 32 provides that such money, or money paid in with a defence of tender, is paid out to the complainant on request unless the Court orders otherwise.
If the complainant accepts
If the complainant elects to accept in full satisfaction of his claim, including costs, the money paid in under section 33, he shall send or deliver to the Clerk and to the defendant a notice in Form 7 stating his acceptance, such reasonable time before the return of the summons as the time of payment permitted, and on his doing so no further proceedings in the complaint shall be taken, and the complainant shall not be liable for any further costs.
Regulation 35 then entitles the complainant to have the money paid out on request. The case is over without a hearing.
If the complainant refuses and goes on
In default of notice of acceptance, the complaint may go on for hearing, and the defendant shall be entitled to an order for such costs as, in the opinion of the Court, he has properly incurred after the payment into Court, unless the complainant recovers a sum larger than the amount paid into Court.
This is the point of the procedure. A complainant who refuses K3,000 paid in and is awarded K2,500 at the hearing has won the case but pays the defendant’s costs from the date of the payment in. Within the District Court’s scale those costs are modest, but so are the sums at stake, and a complainant should think carefully before refusing a realistic payment in. Regulation 30(1) also requires the defendant to pay in the costs of the summons, so a complainant who accepts recovers those too.
Tender as a defence
Where the defence to a complaint or claim of set-off is a tender, the defence is not available unless, before the hearing or by permission of the Court at the hearing, the defendant pays into Court the amount alleged to have been tendered.
Tender is the defence that the defendant offered the whole sum before the complaint was made and the complainant refused it. It is a complete answer to a claim for that sum and to costs, but only if the defendant backs it up by paying the amount into court. It is also one of the defences requiring notice under regulation 24. See the special defences.
Records and payment out
Regulation 12 requires the Clerk to record all money received from or paid to parties in the Suitors’ Cash Book, regulation 17 requires money to be paid out on demand on any day the office is open, and regulation 18 requires the recipient to sign the book. Schedule 3 prescribes a small fee for every payment into court. A party entitled to money in court should ask for it in writing and keep the acknowledgement.
Settlement without payment in
Parties may of course settle privately at any time. Section 22B allows the Court to adjourn for a mediated settlement and to embody a settlement in its order, which is the safer course because an order can be enforced under Part IX and a private agreement cannot. See mediation.
The District Courts Regulation is not on PacLII; it is available on vLex. The professional costs figure in regulation 30(1) is K1.50 in the consolidated text and has plainly not been updated.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.