The claimants brought a possession claim against the defendant. The defendant defended the claim and counterclaimed, successfully, on the basis of a proprietary estoppel. The court ordered that the claimants pay the defendant’s costs on the standard basis, to be assessed if not agreed. However, the order did not make any provision for an interim payment on account of costs, pursuant to CPR r 44.2(8). After the order had been drawn up, sealed and sent out by the court, the defendant’s solicitors raised the matter of a payment on account of costs. The defendant applied to the court for such an order to be made, claiming that he should not be precluded from obtaining an interim costs payment whilst waiting for the final costs amount to be determined, whether by detailed assessment or otherwise. The claimants resisted the order on the basis that if an application was not made at the time, the next opportunity arose only after detailed assessment proceedings had been commenced. The application was dealt with in writing.
On the defendant’s application—
Held, application granted. It was not the law that, once an order for costs had been made, drawn up and sealed, no further application could be made to the court for an order for a payment of a sum on account of those costs. There was nothing in the rules which so required and there may be good reason why payment of the sum on account was not considered at the time the order was made. Although CPR r 44.2(8) contemplated that the court would decide the question at the time of making the order for costs, that did not exclude the possibility that the court should decide it later. There was, therefore, jurisdiction, in principle, to make the order sought. In the exercise of the court’s discretion, the mere fact that the defendant did not ask for a payment on account by itself did not amount to a good reason for not making an order for one. One factor to be taken into account, not on its own necessarily determinative, was whether the receiving party had made a deliberate decision not to seek such an order at the time and then simply changed his or her mind later. There was no suggestion that the defendant deliberately decided not to ask for a payment on account at the time. There was no good reason why the court should not make an order, even at this stage, for a payment on account of costs (paras 14, 15, 22).
Burnetts, Carlisle for the defendant.
Porter Dodson, Yeoville for the claimants.