COURT HAS JURISDICTION TO MAKE AN INTERIM ORDER AS TO COSTS AFTER CLAIMANT HAS ACCEPTED A PART 36 OFFER: COURT OF APPEAL DECISION TODAY

In  Global Assets Advisory Services Ltd & Anor v Grandlane Developments Ltd & Ors [2019] EWCA Civ 1764 the Court of Appeal confirmed that the court can make an interim order for costs after a claimant has accepted a Part 36 offer within time.

 

“Although CPR Part 36 is described as a “self-contained procedural code about offers to settle made pursuant to the procedure” there is nothing in the terms of CPR Part 36 which suggests that it is entirely freestanding and that all costs consequences of the acceptance of a Part 36 offer are to be found within the four corners of CPR”

THE CASE

The claimant accepted a Part 36 offer made by the Defendant. It was agreed that the defendants would pay the claimant’s costs.  The judge declined to make an interim payment for the claimant’s costs on the grounds that he felt he should follow Finnegan v Spiers [2018] 6 Costs LO 729; [2018] EWHC 3064 (Ch)

 

THE COURT OF APPEAL DECISION

The Court of Appeal allowed the claimant’s appeal. A court had power to order an interim payment in circumstances where a claimant had accepted a Part 36 offer.
    1. First, Mr Cohen, on behalf of the Appellants, submits that the decision in the Finnegan case is wrong and, in particular, Birss J’s reasoning at paragraph 31 of his judgment is wrong because the jurisdiction to order a payment on account of costs pursuant to CPR r 44.2(8) applies whether the underlying costs order is made pursuant to the general discretion of the court expressed in CPR r 44.2 or, as in this case, is an order for costs which is deemed to have been made pursuant to CPR r 44.9. I agree. I can see no reason why the power to make an order under CPR r 44.2(8) should be restricted to circumstances in which the court has physically made the order as opposed to circumstances in which an order of the court is deemed to have been made. In both circumstances, it is the court which has ordered the party to pay the costs and accordingly, it seems to me that the circumstances fall within the wording of CPR r 44.2(8). A deemed order is no less an order of the court. It is made in order to enable the matter to be progressed in a fair and proportionate way without further need for costs to be expended and court time and resources wasted. It would be perverse if, as a result, the successful party was at a disadvantage because an interim payment on account of those costs could only be made where the original order for costs had been made following a hearing or by consent.
    2. Furthermore, the rationale for ordering a payment on account of costs is the same whether or not the order for costs is an order which is deemed to have been made. As observed in the Notes to the White Book at paragraph 44.2.12, the object of CPR r 44.2(8) is to enable a receiving party to recover part of his expenditure on costs before the possibly protracted process of carrying out a detailed assessment: Days Healthcare UK Ltd v Pihsiang Machinery Manufacturing Co Ltd [2006] EWHC 1444 (QB). Furthermore, the making of such an order may reduce the points of dispute in the detailed assessment and discourage the paying party from prolonging the assessment itself: Mars UK Ltd v Teknowledge Ltd [2000] FSR 138. A person entitled to costs should not be kept out of the portion of those costs to which he is plainly entitled, pending a detailed assessment. Those policy reasons remain the same whether or not the order is deemed to have been made. In both circumstances something should be paid without delay.
    3. Such an approach is consistent with the reasoning in Barnsley v Noble. That decision was concerned with costs and case management issues arising from interim applications. The relevant issue for these purposes was whether an order for a payment on account of costs could be made in favour of parties against which the claims had been wholly discontinued. It was argued that there was no jurisdiction to make such an order without any order for costs on discontinuance having been applied for and made by the court. Where CPR r 38.6 applies, however, a costs order is deemed to have been made on the standard basis pursuant to CPR r 44.9(1)(c) (formerly CPR 44.12(1)(d)). It was said therefore that there was no power to order an interim payment under CPR r 44.3(8) because the jurisdiction only applied where “the court has ordered a party to pay costs” (emphasis added). As I have already mentioned, the relevant provision is now contained in CPR r 44.2(8) and is couched in the present tense as follows: “Where the court orders a party to pay cost . . .”.
    4. Proudman J held that she had jurisdiction to order a payment on account of costs despite the fact that a discontinuance pursuant to CPR r 38.6 gave rise to a deemed rather than an actual costs order. She held that “. . .CPR 44.12 [CPR r 44.9] is clear in its terms and the mischief which a costs order on account seeks to redress (namely that the person entitled to costs should not be kept out of the portion of costs to which he is plainly entitled pending detailed assessment) is the same whether there is a deemed order following discontinuance or an actual order following trial. . . .” See paragraph 26 of her judgment. I will return to consider Birss J’s treatment of the Barnsley case below.
    5. Furthermore, the reservations expressed by Laddie J in Dyson Ltd v Hoover Ltd (No 4) [2004] 1 WLR 1264 do not undermine the rationale. That was a case in which the claimant having succeeded on liability in its claim against the defendant for patent infringement, elected for an inquiry as to damages. The parties settled the inquiry when the claimant accepted a payment in of £4m which was considerably lower than the amount of £21m originally sought. The court ordered the defendant to pay the costs of the inquiry to be assessed on the standard basis if not agreed and the claimant submitted a bill of costs for £2.5m. Before an assessment had taken place, the claimant applied for an interim payment on account under what was then CPR r 44.3(8). The application came before Laddie J who had not heard the trial or inquiry. He dismissed the application and held that whilst an interim payment should generally be ordered in favour of a successful party where there had been a full trial, that was not necessarily the case where the judge had not heard the whole trial or inquiry as to damages.
    6. The judge in that case was concerned with the previous version of CPR r 44.2(8) contained in r 44.3(8) which was couched in terms of a general discretion to order a payment on account. It is clear from paragraph 16 of his judgment that Laddie J was addressing the question of whether that discretion should be exercised where the judge has not had the benefit of hearing the whole trial. He was neither addressing the present provision which is in materially different form, nor was he considering the question of whether there was jurisdiction to make a payment on account at all, in circumstances where the judge had not heard the trial.
    7. As I have already mentioned, the present provision contained in CPR r44.2(8) is substantially different from CPR r 44.3(8) with which Laddie J was concerned. It now provides that the court “will” make an order for an interim payment of account of costs “unless there is a good reason not to do so.” It seems to me that the current wording cannot form the basis for a distinction between cases in which the application for an interim payment is heard by the trial judge and those in which it is not. It seems to me that it applies whether or not the trial judge hears the application for an interim payment. If the judge hearing the application considers that there is good reason not to make the order, the terms of CPR r 44.2(8) enable him to decline to do so.
    8. Furthermore, since Laddie J considered the application in the Dyson case, costs budgeting has become the norm. Accordingly, as a matter of practicality, there is no need for the “stab in the dark” which Laddie J was reluctant to make. In any event, it is also possible to adopt the “rule of thumb” approach favoured by Coulson J (as he then was) in Fitzpatrick Contractors Ltd v Tyco Fire and Integrated Solutions (UK) Ltd [2010] 2 Costs LR 115[2009] EWHC 274 (TCC). In that case there was no trial. A Part 36 offer had been accepted after the expiry of the relevant period and Coulson J made an order for a payment on account pursuant to the discretion contained in the previous form of CPR 44.2(8), contained in CPR 44.3(8). He took 50% of the costs figure and multiplied it by 75% in order to arrive at the amount to order by way of an interim payment on account of costs. See paragraph 69 of his judgment.
    9. It seems to me, therefore, that there can be no reason to conclude that the power contained in CPR r 44.2(8) can or should only be exercised by the judge who has heard the substantive proceedings. My conclusion is also consistent with a number of further cases to which we were referred. Mr Cohen pointed out that an order for an interim payment on account was made in Beach v Smirnov [2007] EWHC 3499 (QB), despite the fact that the judge had little or no knowledge of the issues in the claim. In that case, Ouseley J approved a settlement on behalf of a protected party in a personal injuries action. He also made an order for the payment of costs on account, both liability and quantum having been agreed, costs in relation to liability having been dealt with and provision having been made in the approved order for the payment of costs to be the subject of a detailed assessment on the standard basis, if not agreed. Equally, in Culliford v Thorpe [2018] 5 Costs LR; [2018] EWHC 252 (Ch) although the order was made by the judge who had heard the trial, the payment on account was ordered after a costs order had already been made and sealed, the judge having overlooked CPR r 44.2(8) on the first occasion.
    10. Furthermore, the distinctions which arise as a consequence of restricting the jurisdiction to make orders under CPR r 44.2(8) to circumstances in which the costs order has been made by a judge rather than having been deemed to have been made pursuant to CPR r 44.9 illustrate the perversity of such a restriction. If that were the case, as Birss J accepted at paragraph 32 of his judgment in the Finnegan case, it would be possible to make an order for a payment on account if a Part 36 offer were accepted after the expiry of the relevant period because CPR r 36.13(4)(b) provides that the liability for costs must be determined by the court if the parties have not agreed it, but not if the offer is accepted within the relevant period in the circumstances with which CPR r 36.13(1) is concerned.
    11. There would be a number of additional anomalies. Where a Part 36 offer is made before the action is commenced and is accepted within the relevant period, it is necessary to commence Part 8 proceedings pursuant to CPR r 46.14 in order to recover the costs to which a party is entitled. In those circumstances, therefore, it would be possible to make an order pursuant to CPR r 44.2(8). The same would be true in the circumstances set out in CPR r 36.14(4) or where the Part 36 offer relates only to part of the claim and the claimant abandons the balance of the claim within the relevant period because CPR r 36.13(2) contains a discretion as to costs.
    12. Not only does such a distinction create perverse results, it would also enable the party accepting the Part 36 offer to determine whether it could be liable for a payment on account by choosing to accept a Part 36 offer immediately before the expiry of the relevant period rather than a day afterwards. That cannot be correct.
    13. It seems to me that it is equally unjustifiable to seek to distinguish the circumstances in which a deemed order arises on a discontinuance, as Birss J did in relation to Barnsley v Noble. Such a distinction requires one to accept that if a deemed costs order is made pursuant to CPR r 44.9(1)(c) on discontinuance pursuant to CPR 38.6, the court retains jurisdiction to make an order for a payment on account of costs, but where a Part 36 offer in relation to the whole claim is accepted within the relevant period pursuant to CPR 36.13(1) and a deemed order arises under CPR r 44.9(1)(b) it does not. In my judgment, that cannot be correct.
    14. In addition, in my view there is nothing in the point that the court is precluded from making an order for payment on account of costs where CPR r 44.9(1)(b) applies because the court cannot vary a deemed order pursuant to its case management powers under CPR r 3.1(7): Lahey v Pirelli Tyres Ltd [2007] 1 WLR 998[2007] EWCA Civ 91. As Birss J noted at paragraph 25 of his judgment in the Finnegan case, the Court of Appeal was concerned with an application to vary a deemed order by substituting an order requiring the payment of 100% of the assessed costs with one requiring the payment of only 25% of those costs. In this case, the Appellants were not seeking to vary a deemed order. They are seeking relief which is distinct from and in addition to the relief contained in it.
Source of the jurisdiction and interaction with CPR 44
    1. In any event, do the terms of CPR Part 36 and CPR r 36.13, in particular, preclude one from reliance upon CPR r 44.2(8)? In other words, was Birss J right to conclude that (i) all of the costs consequences of accepting a Part 36 offer are to be found in CPR Part 36, (ii) there is no reference to the jurisdiction to make a payment on account within Part 36 and (iii) there is no reason to read CPR r 44.2(8) in such a way as to make it applicable when a Part 36 offer is accepted?
    2. First, it seems to me that Birss J was wrong to conclude that one can only look to the terms of CPR Part 36 itself to find the jurisdiction to order an interim payment of costs. Although CPR Part 36 is described as a “self-contained procedural code about offers to settle made pursuant to the procedure” there is nothing in the terms of CPR Part 36 which suggests that it is entirely freestanding and that all costs consequences of the acceptance of a Part 36 offer are to be found within the four corners of CPR Part 36 itself. On the contrary, express reference is made in CPR r 36.13, for example, to CPR r 44.3(2) which it is stated, “explains the standard basis for the assessment of costs” and to CPR r 44.9 which provides for the deemed costs orders which are required to give effect to the terms of CPR r 36.13. Furthermore, the provisions which apply in relation to detailed assessment proceedings, including the point at which the assessment is commenced are contained in CPR Part 47. In addition, CPR r 46.14 provides for the costs only proceedings which are necessary to give rise to a costs order required for an assessment of costs following the acceptance of a Part 36 offer before the action is commenced.
    3. Once one has concluded that the terms of CPR Part 36 itself do not form an exclusive code as to the costs consequences of offers to settle which comply with Part 36, it is necessary to determine whether there is a tension or conflict between CPR r 36.13 and CPR r 44.2(8) which must be resolved. In this regard, Mr Cohen referred us to Lowin v W Portsmouth & Co Ltd [2017] EWCA Civ 2172[2018] 1 WLR 1890Broadhurst v Tan [2016] 1 WLR 1928Solomon v Cromwell Group plc [2012] 1 WRL 1048; [2011] EWCA Civ 1584 and Hislop v Perde [2019] 1 WLR 201. In each of those cases there was an apparent tension or conflict between two provisions of the CPR and it was necessary to determine first whether there was an actual tension which needed to be resolved and if so, which provision must prevail.
    4. In this case, once one has concluded that it is possible to look outside CPR Part 36 itself, it seems to me that there is no conflict or tension between CPR r 36.13(1) and CPR r 44.2(8) at all. It is not necessary to determine which provision must prevail. The former entitles a party to its costs of the proceedings on a particular basis and is complemented or supplemented by the latter which creates the jurisdiction to order a payment on account of those costs. CPR r 44.2(8) does not undermine or conflict with CPR r 36.13(1) at all. I should add that although Mr Cohen made reference to the very wide statutory jurisdiction as to costs contained in section 51(1) of the Senior Courts Act 1981 and suggested that Birss J was wrong not to identify it as the source of the court’s jurisdiction to make an order for a payment on account, it seems to me that it does not take the matter any further. Section 51 provides expressly that it is subject to the Rules of court and as a result one is driven back to determine the relationship between CPR r 36.13 and CPR r 44.2(8).
The Barnsley decision
    1. It will be apparent from everything that has gone before that I consider Barnsley v Noble to have been rightly decided. It also follows that, in my judgment, Birss J was wrong to distinguish the Barnsley case in the way he did at paragraph 32 of his judgment in the Finnegan case, particularly in the light of the fact that he himself accepted at paragraph 26 of his judgment that Proudman J’s reasoning was based upon the nature of a deemed order pursuant to CPR r 44.9 rather than the existence of a discretion in CPR r 38.6. It seems to me that there is no logical distinction to be made between the circumstances in which a deemed order is made on discontinuance under CPR r 44.9(1)(c) and where a deemed order is made following the acceptance of a Part 36 offer within CPR r 36.13(1), pursuant to CPR r 44.9(1)(b).
Conclusion
  1. As I consider there is a jurisdiction to make an order for an interim payment on account of costs in this case, it leaves me to consider whether to exercise the jurisdiction in relation to the costs in the substantive action and to determine the level of such a payment. I can see no good reason why the jurisdiction should not be exercised. Furthermore, in the light of Master Gordon-Saker’s order for a costs certificate in the sum of £225,000, it seems to me that it is not necessary to consider the details of the costs schedules in this matter or to restrict the payment to the sum of £215,000 which was sought originally. The Master considered all of the relevant details and arrived at the figure of £225,000. It seems to me to be appropriate, therefore, that the order for an interim payment should be for the same amount.
  2. For all the reasons set out above, I would allow the appeal.