To view this page ensure that Adobe Flash Player version 11.1.0 or greater is installed.

Payments on Account of Costs There were so, so many changes implemented back in April. A profound but overlooked reform was the arrival of CPR 44.2(8). “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. 7