PI Brief Update

Interim interim payments on account of costs - Amy Lanham Coles, Temple Garden Chambers

20/11/23. Shaun Trotman v Master Brickwork London Essex Limited [2023] EWHC 2791 (KB). This case dealt with the question of whether a successful Claimant is limited to securing a singular interim payment on account of costs before commencing detailed assessment under CPR rule 44.2(8).

Facts

In this case, the Claimant, a protected party, had obtained a settlement for serious injuries he had sustained falling through a skylight. The settlement approval consent order had included an order for an interim payment on account of costs in the sum of £65,000 – although this had not been sought by way of formal application. It appears this had been dealt with briefly at the end of the approval hearing, and the order noted that the Claimant reserved the right to seek more. The order had also directed that costs were to be assessed if not agreed. Later, the Claimant applied for a further interim payment on account of costs in the sum of £215,000 and later again a detailed bill of costs in the sum of around £400,000.

The further interim payment on account of costs was resisted by the Defendant on the grounds that the court had no jurisdiction to order a further interim payment.

Law

CPR rule 44.2(8) reads as follows:

Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not todo so.

The Defendant argued that that above rule limited the court’s jurisdiction to the making of a single order for a single payment before detailed assessment proceedings were commenced. The Defendant submitted that the phrase “where the court orders” should be read as meaning “when”, and therefore referred to the point at which the court ordered a detailed assessment, necessarily precluding further orders (para 17).

Judgment

Master Victoria McCloud held in favour of the Claimant, that further interim payments on account of costs were permitted under r 44.2(8).

She disagreed with the Defendant’s reading of r 44.2(8), concluding that “the use of where […] connotes a state of affairs rather than an event” (para 23). In the same vein she rejected the notion that the reference to “a reasonable sum” indicated that if any further sum (or sums) were ordered, this would, by definition, be unreasonable (para 24).

Considering the case law, she reflected that the point had not been determined, although considered it persuasive that the point had failed on merits rather than grounds of jurisdiction in the case of Blackmore v Cummings (Practice Note) [2009] EWCA Civ 1276 (para 21).

The judge considered that wording of the rule and the case law only took her so far. In her judgment, the policy considerations relied upon by the Claimant in support of a flexible approach to interim payments on account of costs were essential to her reasoning.

These policy considerations were commended at paragraph 22:

• to reduce the need for protracted later detailed assessments;
• to allow parties to access money which was inevitably due to them without delay
• to reduce later applications for Interim Costs Certificates.

The judgment is a determination of a yet unresolved issue, namely the ability of the court to order additional interim payments on account, which may be of use to those facing the protracted post-judgment litigation which this decision seeks to curb.

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