CLINICAL NEGLIGENCE: INTERIM PAYMENTS : PAYMENTS ON ACCOUNT : CPR 44.2(1) : CPR 44.2(2) : CPR 44.2(8)
Full Reasons For Refusing Permission to Appeal
The Rt Hon. Lord Justice Irwin:
1.Jurisdiction: I reject this ground. The argument as to jurisdiction is unsustainable. CPR 44.2(2)(a) [“the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”] stipulates a “general rule … that the unsuccessful party will pay the costs … “. It is obvious that there are two ingredients to this provision. Firstly, it is a general rule, and secondly the meaning of “successful party”. The first means, in my view, that the jurisdictional argument must fail, since it means that in a suitable case a judge may award costs to an unsuccessful party as do the terms of CPR 44.2(2)(b). In any event, the terms “unsuccessful” or “successful” parties cannot be confined to a binary [outcome] of the whole case. Here the term may readily be refined to mean “will succeed sufficient to justify the further costs sought”.
2. “Such jurisdiction is rarely, if ever, to be exercised in ordinary litigation such as the present”. I see no basis for an “exceptionality’ test CPR 44.2. Indeed, the Applicant’s skeleton argument barely attempts to present any such submissions.
3. “There were no exceptional circumstances on the facts of this case”. In reality this ground submits the award here should not have been made on these facts, rather than depending on an exceptionality requirement that is not present or deducible from the CPR or authority. The critical facts here are: (1) there is an acknowledged 90% liability (2) the claim is very large and will far exceed the interim payments awarded (3) there will be an exceptionally long period before quantum can be finalised, for the reasons set out by the judge (4) there has been no Part 36 offer and (5) the judge has assessed there is effectively no risk that the costs now sought will prevent future set-off of costs to be paid to the Defendant, whether against costs due, or damages due, to the Plaintiff.
I reject the notion that the Part 36 offer should not have been brought to the judge’s notice, or that it was irrelevant. A Part 36 offer is to be treated as “without prejudice except as to costs” (CPR 36.16(1)) and the terms “must not be communicated to the trial judge until the case has been decided” (CPR 36.16(2)).
The Part 36 offer (or its absence) was brought before the Court on a question of costs, and HHJ Robinson was not the trial judge. It seems to me a highly relevant circumstance in adjudging the key point: was there a risk of an overpayment of costs by the Appellant?
Turning to whether this was a proper case for an order such as this, in my view it clearly was, for the reasons formulated by the judge. It must be right that in such a case a key consideration is to preserve security for a Defendant, so that there is no appreciable risk of a need to repay costs paid on an interim basis. Subject to that principle,
it seems entirely proper to me to order interim costs payments with a view to the cashflow of solicitors in very long-lasting litigation, where very significant liability has been conceded. That must particularly be so in the case of specialist solicitors who may be facing such problems in a range of cases.