![Derrick Yirenki v Ministry of Defence [2019] EWHC 1955 (QB)](https://i0.wp.com/tmcls.co.uk/wp-content/uploads/2019/08/Derrick-Yirenki-v-Ministry-of-Defence-2019-EWHC-1955-QB.jpg?resize=180%2C180&ssl=1)
Following the decision of Birss J in J P Finnegan v Spiers (t/a Frank Spiers Licensed Conveyancers) [2018] 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.
This was a decision of Jacobs J as to the entitlement of the defendant following discontinuance to an award of indemnity costs and a payment on account pursuance to CPR 44.2(8). The Court held that there was nothing “out of the norm” in the claimant’s conduct of the proceedings (in which they sought the enforcement of a Swedish arbitration award) up until a hearing of the defendant’s application to set aside in June 2017 when Robin Knowles J found that the defendant’s three original grounds of challenge were no longer maintainable, but that they had had established a prima facie case that the award was obtained by fraud.
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.
