Electricity Supply Nominees Ltd v Farrell

An action remains pending, after judgment or a consent order, for the purposes of working out and enforcing the judgment. The court therefore retains jurisdiction to resolve a dispute about interest on costs; the issue is not necessarily reserved to the taxing master or required to be pursued in fresh proceedings.

Under sections 17 and 18 of the Judgments Act 1838, interest on costs ordered to be taxed runs from the date of judgment or, in the case of a consent order, from the date of the stay. Parties may modify that position by agreement, but only by clear words. A conventional provision that costs when taxed or agreed shall be paid does not, without more, postpone the commencement of interest.

The plaintiff’s substantive claim concerning defects in premises was settled. A consent order stayed the proceedings and required the second, third and fourth defendants to pay the plaintiff’s costs, to be taxed if not agreed.

Following taxation, the plaintiff sought judgment for unpaid costs and interest. The first-instance judge refused the application, holding that the court had no further jurisdiction and that the matter belonged before the taxing master.

The Court of Appeal considered whether the High Court retained jurisdiction to determine the application and whether interest ran from the consent order or from the taxing master’s certificates.

1. Appeal allowed. Lord Justice Kennedy held, with Lord Justice Peter Gibson agreeing and Mr Justice Buckley agreeing in a separate judgment, that the High Court retained jurisdiction to determine the plaintiff’s application. The action remained pending for all purposes necessary to work out and enforce the judgment, including the enforcement of costs.
2. The authorities showed a longstanding jurisdiction to make consequential orders concerning interest on costs. The taxing master’s delegated functions did not extend to deciding this dispute. R v Cripps ex parte Muldoon was distinguishable because that case concerned an impermissible alteration of an unambiguous order, rather than clarification or implementation of an existing order.
3. Sections 17 and 18 of the Judgments Act 1838 treated an order for costs as a judgment debt carrying interest from the time of entering judgment. Following Hunt v Douglas, that meant interest on subsequently taxed costs ran from the date of judgment. The same principle applied to a consent order, with the relevant date being the date of the stay. Thomas v Bunn concerned interlocutory damages requiring assessment and did not alter that conclusion.
4. The parties could modify the ordinary incidence of interest by agreement, but clear wording was required. The words requiring costs, when taxed or agreed, to be paid merely described what would occur and did not postpone interest until taxation. Mr Justice Buckley added that parties could instead make a side agreement or adjust other terms of the settlement. The appeal was allowed with costs.

• Court of Appeal: Allowed the appeal from the order of His Honour Judge Bowsher, sitting as a High Court judge, which had refused the application for liberty to enter judgment for interest on taxed costs.
• High Court: The judge held that, after acceptance of money paid into court, the court ceased to have jurisdiction over costs and interest, and that the issue should be dealt with by the taxing master.