Where the court orders a payment on account of costs, can that order be enforced? At this stage, the costs themselves have not yet been assessed. All that has been ordered is an interim amount until the actual amount due is determined.
The note at 70.1.3 of the White Book 2023 suggests enforcement is not possible:
“Judgment or order for the payment of costs
Orders for payment on account of costs not yet quantified can be obtained under r.44.2(8) or r.47.16(1). See SCCO Guide at para.1C-136. But costs must be quantified before payment can be enforced…”
However, the note is not particularly helpful as it does not give any authority for this view.
(The position in relation to interim costs certificates is clear because of the wording of PD 47 para.16.12: “An interim or final costs certificate may be enforced as if it were a judgment for the payment of an amount of money”. But this makes no mention of general orders for payments on account.)
Interestingly, there does not appear to have been any previous case law directly on this issue.
Clarity has now been provided in Patel & Ors v Awan & Anor [2024] EWHC 464 (Ch).
Unsuccessful defendants were ordered to pay the claimants’ costs of the proceedings and make a payment on account of those costs. Payment was not made and the claimants obtained a charging order against the defendants’ property, relying on the order for the payment on account. They then sought an order for the sale of the property.
The defendants argued:
“the Order is not enforceable by any method that would require payment now because it is based on a contingent liability that has yet to be determined. It is not yet therefore due. This is based on the premise that until there has been a detailed assessment of the costs under paragraph 2 of the Order the sum that will be due cannot be properly ascertained. Consequently whether for the purposes of the Charging Orders Act or most other forms of enforcement there is not yet any sum due under paragraph 3 because it is an interim payment on account of the sum in paragraph 2. There is no sum which can be enforced.”
Master Kaye concluded:
“My conclusion on the question of whether paragraph 3 of the Order is enforceable by way of a charging order and subsequently an order for sale is therefore that:
i) an interim payment on account is an enforceable money judgment/costs order which falls due on the date specified in the relevant order and if the order is silent then is payable and due for payment in accordance with any applicable rule, practice direction or statute setting the due date for payment and enforceable;
ii) If such an order or judgment remains unpaid after the due date it is then enforceable as a judgment debt in the same way as any other order of the court for a sum of money;
iii) There is no magic to the words in section 1 of the Charging Orders Act for these purposes. An interim payment on account is a sum which is payable and which has become due if the time for payment has passed.”
