Two Way Costs Orders And CPR 44.2(8) |


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).

The Defendant did not seek an interim payment in respect of its own costs but opposed the Claimant’s application on several grounds including that it would be unfair to order a payment in the Claimant’s favour but to ignore the Defendant’s entitlement to payment of its costs.

This was particularly so, it was said, when the competing costs orders were made at, and as a result of, the hearing of the same application.

The Defendant further submitted that it should not be prejudiced simply because there was greater difficulty in identifying precisely the amount of its own costs attributable to the struck out parts of the Particulars of Claim, which were payable by the Claimant, than the Claimant’s costs of the applications.

Roger ter Haar QC (sitting as deputy High Court Judge) rejected the Defendant’s opposition and awarded the Claimant a payment on account in the sum of £40,000.

“In my judgment the appropriate way to address the Defendant’s submission is to ask whether the costs which it seeks to bring into credit could properly be the subject of an application for an interim payment at this stage. The Defendant does not make any such application, and in my judgment rightly so for the reasons given in the preceding paragraph of this judgment…. were I to adopt the approach suggested by the Defendant it would make considerable inroads into the impact of CPR rule 44.2(8), as a party would be able to bring into account contingent and uncertain entitlements as to costs to defeat an otherwise sure entitlement on the part of the other party to an interim payment. This would have the potential not only to undermine CPR rule 44.2(8) but also to encourage satellite disputes.”