“…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.”
Following judgment for the Defendant in this case, the court awarded costs on the standard basis along with pre judgment interest at 2% pursuant to CPR 44.2(6)(g). The Judge went on to consider an appropriate payment on account. In line with developing case law, in particular the decisions in MacInnes v Gross  4 WLR 49 and Thomas Pink Ltd. v Victoria’s Secret UK Ltd.  EWHC 3258 (Ch) he awarded 90% of the budgeted costs as against 50% offered by the Claimant.
This Court of Appeal decision emphasised Clarke LJ’s rejection in Excalibur Ventures LLC v Texas Keystone Inc.  EWHC 566 (Comm) of the proposition that “the test for the sum to award was the “irreducible minimum””, and Leggatt LJ’s decision in Dana Gas v Dana Gas Sudek  EWHC 332 (Comm) that “A logical approach is to start by estimating the amount of costs likely to be recovered on a detailed assessment and then to discount this figure by an appropriate margin to allow for error in the estimation.”
In this short judgment Mr Justice Cavanagh declined to make an issue-based costs order despite the claimant having been unsuccessful in two parts of his claim on the basis that the evidence which he had obtained and presented in support of these had not been wasted.
The Defendant succeeded in striking out parts of the claim against it but failed in two other applications.
As a result, costs orders were made in both directions.
Summary assessment was considered inappropriate due both to the “difficult exercise in assessment” of the Defendant’s costs and the amount sought by the Claimant.
The Claimant therefore sought a payment on account under CPR 44.2(8).
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 Court was tasked with determining costs following a hard fought piece of commercial litigation in which the claimant was awarded US$5,388,312.08 of a US$63.5 million claim. Mrs Justice O’Farrell considered the various authorities and relevant principles to be applied when determining whether to make an issues based or proportional costs order before determining that the defendant should pay 85% of the claimant’s costs.
Following the decision of Birss J in J P Finnegan v Spiers (t/a Frank Spiers Licensed Conveyancers)  EWHC 3064 (Ch) which we reported on last year, HHJ Rawlings has found that the court has no power to award a payment on account of costs in circumstances where the substantive action has settled by way of acceptance of a Part 36 Offer.
We previously reported on the decision of HHJ Robinson on appeal in the County Court at Northampton where he overturned District Judge Batchelor’s refusal to allow a second interim payment in a long running clinical negligence matter where 90% liability had been admitted and it was agreed that determination of quantum would not be possible until 2022, commenting that “Failure to ensure adequate cash flow during the period of inevitable delay may lead to the perverse and undesirable consequence that solicitors are unwilling to take on case [sic] such as this at an early stage.”
The defendant has been refused permission to appeal this decision by the Court of Appeal.