Kerry Underwood

PAYMENT ON ACCOUNT OF COSTS CONSIDERED

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

Benyatov v Credit Suisse Securities (Europe) Ltd [2020] EWHC 682 (QB)

the court considered CPR 44.2(8),  which provides that 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 to do so; it is rare that good reason is established.

Here, various reasons suggested by a defendant facing costs orders were rejected:

Costs orders in both directions – the claimant had a costs order regarding three applications but had been ordered to pay the defendant costs regarding struck out paragraphs of the particulars of claim.

The defendant had not sought an interim payment for those costs and they could only be properly assessed at the end of proceedings when work thrown away could be considered in the full context.

The judge rejected this as a reason not to order an interim payment as it would allow a party to bring into account contingent and uncertain entitlements as to costs to defeat an otherwise sure entitlement of the other party to an interim payment.

This could not only undermine CPR 44.2(8) but also encourage satellite disputes.

Had the defendant made an application for an inteim payment, the position might be different.

Likelihood of a further costs order in the defendant’s favour – the defendant submitted that a costs order might be made against the claimant regarding a future amendment application.

The judge considered it would be wrong to deny the claimant his entitlement to a payment on account of costs because a future costs order might be made against him.

The appropriate course was to deal with the implications of any future costs order as and when such an order was made.

Defendant had sought permission to appeal – the judge said that this did not prevent him ordering an interim payment.

However, as time for applying for permission had been extended, he ordered that the time for making the payment should not start to run until the application had been determined.

Prospect of subsequently recovering costs – the judge did not accept on the facts that the claimant might not be able to repay. Evidence for a previous security for costs application was noted.

The judge went on to order one third of the sum sought by the claimant.

Written by kerryunderwood

April 3, 2020 at 11:01 am

Posted in Uncategorized

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