When is it preferable to have a costs order on the standard basis rather than on the indemnity basis? Potentially, where a costs management order has been made.
CPR 3.18(b) provides:
“In any case where a costs management order has been made, when assessing costs on the standard basis, the court will not depart from such approved or agreed budgeted costs unless satisfied that there is good reason to do so”
Although the decision in Barts Health NHS Trust v Salmon [2019] took a different approach, the generally accepted position is that, all other things being equal, a receiving party will recover their costs up to the amount of the last approved budget.
Therefore, for example, if a budget (in respect of estimated costs) is approved at £100,000 to take a matter to trial, and the case settles at trial, if the receiving party has incurred costs of £95,000 they should expect to recover those costs in full. The exception is where the paying party can identify a “good reason” to depart from the approved budget. However, crucially, this only applies to an assessment on the standard basis.
If costs are payable on the indemnity basis, CPR 3.18(b) has no application. On detailed assessment the court will assess the costs on a line-by-line basis applying just the test of whether the court considers the costs claimed to be reasonable. The receiving party will benefit from the fact that any doubt will be resolved in their favour and proportionality will not apply. However, the benefit of the doubt conferred by CPR 3.18(b) will not apply if they are within budget. In the above example, if a court assesses the reasonable costs as being £90,000, that is all they will allow, notwithstanding the approved budget of £100,000. From the paying party’s perspective, there is no “good reason” hurdle to overcome.
It is therefore perfectly possible for a receiving party to find themselves at a disadvantage with an indemnity basis costs order in their favour rather than a standard basis one. Parties might wish to be careful before they push too eagerly for a costs order on the indemnity basis.
