Ravengate Estates Ltd v Horizon Housing Group Ltd & Anor

Where an appeal has been dismissed, the successful respondent will ordinarily receive its costs, subject to assessment if they cannot be agreed. An interim payment may nevertheless be refused where the recoverability of a substantial item is uncertain and unresolved costs liabilities from the proceedings below may produce a significant balance payable to the appellant. The court may preserve the overall flow of payments until the costs position has been assessed and netted off.

Ravengate Estates Limited appealed from a decision of the Central London County Court before HHJ Lindsay Q.C. The appeal had been dismissed. This judgment addressed the consequential costs order and the respondent’s application for an interim payment of £15,000 towards its appeal costs.

The central issue was whether an interim payment was fair in light of the respondent’s costs schedule and outstanding costs issues arising from the hearing below.

1. Costs of the appeal. The parties agreed that, following dismissal of the appeal, the appellant should pay the respondent’s costs, to be assessed if not agreed.
2. Interim payment. The respondent sought an interim payment of £15,000. The costs schedule appeared generally reasonable at first sight, but included more than £3,000 for a surveyor. The court could not see why surveyor’s costs were necessary or appropriate for the appeal, and there was a serious question about their recoverability. Excluding that item, the recoverable costs appeared to be a little over £20,000.
3. Absent other considerations, the court would have been prepared to order an interim payment of approximately £12,000 to £13,000. However, costs liabilities arising from the hearing below remained unresolved. Under the orders made at trial, the respondent was entitled to costs up to 30 January 2006 on the standard basis, while the appellant was liable for the respondent’s later costs on an indemnity basis. The assessment had not been completed.
4. The appellant asserted that it might be owed approximately £10,000 under the costs orders below. Although that assertion was unsupported by evidence, the court accepted for present purposes that there was a significant chance that the appellant would recover some costs. In those circumstances, and given the relatively limited interim sum otherwise appropriate, the fair course was to avoid distorting the flow of payments before the overall assessment was completed.
5. The application for an interim payment was therefore refused. Lord Justice Mummery and Lord Justice Jacob agreed with the judgment of Mr Justice Mann.

• Court of Appeal (Civil Division): Appeal from the Central London County Court before HHJ Lindsay Q.C. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs, to be assessed if not agreed, but no interim payment was ordered.