INTERIM PAYMENTS ON ACCOUNT OF COSTS: READ (AND CITE) THE CORRECT CHAPTER OF COOK ON COSTS

 I am grateful to John McQuater for sending me a copy of an order from HH Judge Robinson,  It relates to an application on account of costs.  The appeal was (for obvious reasons) compromised. However the robust terms of the order should give paying parties pause for thought.  An order giving permission to appeal is not a precedent. However the comments here are of some general significance.

THE CASE

Mr McQuater’s comments

“An issue that sometimes arises is whether the court can make an order for a payment on account of costs following the time at which an order is made for the detailed assessment of those costs.
 
There is a view that an order can only be made for a payment on account at the time when the order as to costs is made though my own view is that this is not supported by the terms of the rule.
 
Last year, in a clinical negligence claim, we had an application for a payment on account refused on the basis this had not been made at the stage when the terms as to costs were agreed.
 
We sought permission to appeal the order and this was granted, in fairly robust terms, by HHJ Robinson – a copy of the order and reasons is attached.
 
We did, in the event, reach terms under which the appeal was allowed, with costs, though the defendant expressly reserved the right to argue the point raised on any future occasion.
 
This may be a point other practitioners experience from time to time so I thought I would send through to you in case it was of interest.”

THE ORDER GIVING PERMISSION TO APPEAL

The judge observed that he had not heard submissions and the observations were subject to detailed submissions. However:-

  • The District Judge had been “completely misled by the Advocate for the Defendant”.
  • That Advocate referred to a passage in chapter 5 Cook on Costs that deal with interim payments on account of costs by the client to his own solicitor. It had no relevance to a claim for an interim payment on account of costs by the paying party to the receiving party.
  • The relevant chapter of Cook on costs and CPR 44.2.(8) makes it clear that a court will order the paying party to pay a reasonable sum.
  • A consent order had been made that the defendant would pay the claimant’s reasonable costs. Rule 44.2(8) was brought squarely into play.
  • If the appeal proceeded the judge would be asking why the District Judge was referred to an irrelevant chapter in Cook and why his attention was not drawn to Chapter 25.

The order is available here Cordery Order Granting Permission to Appeal with Judges Notes-Comments