“…in contrast to the position in X v Hull, there have been early Part 36 offers in this case. If the approach I have set out above … is the correct approach to the second stage of the determination then I could not with an appropriate degree of certainty, bearing in mind also potential deductions for contributory negligence, conclude that there is sufficient security for the Defendant’s costs in an immediate award of damages or otherwise as proposed by Mr. Reddiford. Put another way, if I were persuaded that the underlying costs orders sought should be made, the effect of making an interim payment would be to diminish the security which is to be found in those costs orders. In all the circumstances even if I were persuaded to have made the final costs orders, I would not therefore have been satisfied that it was appropriate to make an order for interim payment of costs.”
Master Cook has endorsed the approach taken by HHJ Robinson in I v Hull & East Yorkshire Hospitals NHS Trust where overturned the refusal of DJ Batchelor to award the claimant in a long running clinical negligence matter a substantial payment on account of quantum costs.
The Claimant successfully appealed a decision to refuse a further interim payment on account of costs in a case where liability had been admitted and it was agreed that determination of quantum will not be possible until 2022.