D.J. & C. Withers (Farms) Limited v Ambic Equipment Limited

Pending an appeal, the court may stay detailed assessment of costs where success could lead to a retrial and the costs order being set aside, making assessment wasteful and expensive. An interim payment may nevertheless be appropriate for costs already ordered on an indemnity basis in any event, where those costs are likely payable whatever the appeal’s outcome. Where notice of an interim-payment application is served only shortly before the hearing, the court may adjourn the application or defer quantum to ensure a fair opportunity to respond.

D.J. & C. Withers (Farms) Limited v Ambic Equipment Limited was an appeal from an order of His Honour Judge Mackay in the High Court’s Technology and Construction Court requiring the claimants to pay the defendants’ costs, subject to detailed assessment. The appellants sought a stay of assessment pending the appeal. The respondents sought interim payment on account of costs generally and of costs awarded by an earlier order dated 22 September 2000, which included costs of a substantial amendment and costs thrown away on an indemnity basis in any event. The central issues were whether assessment should be delayed and whether interim payment, including quantum, should be ordered despite short notice.

Lord Justice Clarke determined the interlocutory applications pending the appeal.

1. Stay of detailed assessment. A stay was appropriate. The appeal might succeed, resulting in a retrial and the setting aside of the costs order. Conducting a detailed assessment before the appeal would then waste substantial time and expense, particularly given the costs claimed were approximately £250,000.
2. Interim payment generally. The court considered that an interim payment on account of costs generally might be appropriate, but did not make such an order at that stage. The application had been served only on the Friday before the hearing, and the appellants were based in New Zealand. The short notice made it inappropriate to determine the application then.
3. Costs ordered on 22 September 2000. An interim payment was ordered in principle for the costs awarded by the earlier order. Those costs were ordered on an indemnity basis in any event and, on the respondents’ submission accepted by the court, would be payable whatever the outcome of the appeal. The quantum of the payment was adjourned because of the short notice.
4. Directions. Detailed assessment was stayed until after the appeal. The appellants were to state their position on quantum within 14 days, the parties were to address security for costs and serve the directed evidence, and costs were reserved.

• High Court of Justice, Queen’s Bench Division, Technology and Construction Court: His Honour Judge Mackay ordered the claimants to pay the defendants’ costs, subject to detailed assessment. An earlier order dated 22 September 2000 awarded costs of and occasioned by a substantial amendment, including costs thrown away, on an indemnity basis in any event.
• Court of Appeal (Civil Division): The court stayed detailed assessment pending the appeal, ordered an interim payment in principle for the costs covered by the 22 September 2000 order, and adjourned the remaining interim-payment issues and quantum. The merits of the appeal were not decided in this judgment.