The pre-Jackson CPR contained two provisions concerning the making of orders requiring interim payments prior to detailed assessment. CPR 44.3(8) read:
“Where the court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed.”
The second provision was contained CPR 47.15(1):
“The court may at any time after the receiving party has filed a request for a detailed assessment hearing –
(a) issue an interim costs certificate for such sum as it considers appropriate;
(b) amend or cancel an interim certificate.”
I had always read this to mean there were two stages at which such an order could be made:
1. At the same time an order for costs is being made (usually following a trial).
2. After a request has been filed for a detailed assessment hearing.
Therefore, if an order for a payment on account had not been made when the costs order was being made, the next opportunity to obtain an order for an interim payment would not arise until after a request for a detailed assessment hearing had been made. CPR 44.3(8) did not confer a general power on the court to order an interim payment at any stage. If it did, CPR 47.15(1) would have been redundant.
Interestingly, in the cases of Dyson Ltd v Hoover Ltd [2003] EWHC 624 (Pat) and Blackmore v Cummings & Ors [2009] EWCA Civ 1276 it appears this distinction in timing was not argued and the courts simply proceeded on the basis that CPR 44.3(8) could be used to obtain an interim payment at any stage after an order for costs had been made.
The current wording of the CPR is very similar to before, except there is now a presumption a payment on account will be ordered when costs are awarded. CPR 44.2(8) reads:
“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.”
CPR 47.16(1) reads:
“The court may at any time after the receiving party has filed a request for a detailed assessment hearing –
(a) issue an interim costs certificate for such sum as it considers appropriate; or
(b) amend or cancel an interim certificate.”
There is therefore no reason to suppose the issue of timing has changed, assuming my interpretation is correct.
Cook on Costs appears to agree with my views as to timing:
“Where agreement has been reached by acceptance of a Part 36 offer, there is no scope to seek an interim payment of costs until a detailed assessment hearing is requested (via an interim costs certificate). Consequently, these circumstances should prove a powerful incentive for you to get your breakdown or bill drafted and submitted to the other side as soon as possible.”
That has always been my reading of the rules (pre and post-Jackson). I am just not aware of any case law confirming this.
Leave a Reply