Culliford & Anor v Thorpe [2018] EWHC 2532 (Ch)

Here it was held that the court has jurisdiction to entertain an application for a payment on account of costs pursuant to CPR 44.2(8), even where the order for detailed assessment has already been drawn up and sealed.

The Defendant had successfully defended the claim at trial and obtained a costs order in its favour, subject to detailed assessment. It did not, at that stage, request a payment on account under to CPR 44.2(8). CPR 44.2(8) provides: “Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so”.

The Defendant made a later application for a payment on account of costs pursuant to CPR 44.2(8), which the Claimant resisted on the grounds that: (1) the court had no discretion to entertain such an application, as CPR 44.2(8) required the order for payment on account to be made at the time the court makes the costs order in the receiving party’s favour; alternatively (2) if the court did have discretion to entertain the application, it should not exercise it in the Defendant’s favour, inter alia because the Defendant had failed to seek a payment on account at trial.

As to (1), the judge found that he had jurisdiction to entertain the application. The language of CPR 44.2(8) contemplated that orders for payments on account would routinely be made at the same time as the principal costs order, but it could not be construed as excluding the possibility that an application may be made later. Indeed, there may be a very good reason why a payment on account was not sought at the time the costs order was obtained, and it would not be right to allow the receiving party (who has an entitlement to the costs sought) only one window of opportunity to seek a payment on account. I pause to note that that must be correct, otherwise CPR 44.2(8) would represent a dramatic erosion of the court’s general discretion as to when costs are to be paid: CPR 44.2(1)(c). That being so, it in turn suggests that parties may be able to make successive applications for payments on account prior to detailed assessment.

As to (2), the Judge took into account the fact that CPR 44.2(8) sets up a presumption in favour of ordering a payment on account, as well as the fact that there was no evidence the Defendant had deliberately failed to seek such a payment at trial, in order the Claimant to pay some £30,000 on account.