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Elite Law Solicitors incorporates HM Law Costs Draftsmen Ltd and

Never too late to seek an interim payment on costs

In the case of Aliston Albert Ashman v Clyde Caulson Thomas [2016] EWHC 1810 (Ch) costs were awarded to the Defendant, to be paid by the Claimant on the standard basis if not agreed. In seeking to agree the terms of the order Counsel for the Defendant sought to include a term for a payment on account of costs.

In this matter there was no request for a payment on account of costs at the time the order was made and no detailed assessment proceedings had been commenced therefore not allowing the Defendant to seek an interim costs certificate be issued under CPR 44.16(1).

CPR 44.2(8) provides: "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".

The mandatory terms of CPR 44.2(8) (subject to the existence of a 'good reason') mean that there is even more reason for the Court to exercise its power when the matter is drawn to the Court’s attention than there might otherwise be.

The general rule is that an order takes effect from the moment it is made by the Court, not when it is entered and sealed by the Court office however the Court retains power to alter its judgment or order at any time until it is entered and perfected by sealing.

Accordingly the Master concluded that there could be no objection in principle to considering the Defendant's request for a payment on account of costs, and indeed there was good reason to do so, when this is sought after the hearing but before the order is sealed.

The Defendant’s statement of costs was in the sum of £48,647.70 (including VAT) and their order asked for £20,000 to be paid on account within 14 days.

The Claimant criticised the statement on a number of grounds. Given the criticisms made (particularly in relation to excessive rates, excessive hours and lack of delegation) the Master ordered that £17,500 be paid on account of costs within 14 days.

The key point here is that a request for a payment on account can be made after the hearing so long as the order has not been sealed and the Court chooses to exercise its discretion which, given the contents of CPR 44.2 (8), should occur in most cases.