Rule 40 Deposit ordersI1
England, Wales and Scotland
Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).
The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.
The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order.
If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates.
Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).
Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).
If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order—
the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and
the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders),
otherwise the deposit must be refunded.
If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.