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Account of Costs
There were so, so many changes
implemented back in April. A profound
but overlooked reform was the arrival of
“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.”
Previously, the court had discretion as
to whether to even make an order at all.
Now, the starting point is that it will so
order. What is a good reason today not
to make an order? If the Judge grants
leave to, appeal it may be that they will
hold back since a reversal may occur in
the appellate court.
In the past Judges were extremely
cautious about ordering significant
payments for fear of doling out too
much and many on the bench would be
directing a conservative percentage of
perhaps as little as 35% of what they
felt would ultimately be recovered.
If you are in a budgeted action I
suggest that you ought to be seeking
much more and this is why. The old
approach was applied because the trial
Judge would not have a clue about the
history of the case. It would appear in
their list and they would hear it .
Contrast the position today where a
Judge who has undertaken a budge-
ting hearing will have delved into the
dispute and acquired a flavour of it.
This is very different.
Let me give you an example.
Say the approved budget is £100,
000. At the end of the case which
you have won I think you ought to be
looking for, say, 75% on account? Since
the court has intimated that it would be
reasonable to spend £100,000 where is
the harm in awarding a substantial but
lesser sum on account ?
There is another secret Judicial
tactic here. A Judge who has awarded a
large interim payment on account of
costs will secretly hope that the par-
ties will do a deal on the outstanding
balance since it now represents a
comparatively modest sum.
They will never darken the door of the
court again. Cunning eh?
Prof. Dominic Regan
Professor Dominic Regan is, with
Jeff Zindani, the co-author of
“Surviving Jackson”, available from
Sun Legal Publishing at £99.99
Finally, appreciate the canny move of
HHJ Simon Brown QC who, on more
than one occasion, has awarded the
winner the budgeted sum as their costs
where they have adhered to it .
When I spoke to him about this he
explained that, having looked at
the costs carefully at the budgeting
hearing, he could not see any material
benefit in wasting time and money on a
detailed assessment. This is an excellent
exercise of discretion and accords with
the new overriding objective which
insists that cases be dealt with “at
proportionate cost”, a vital amendment
also from April.