Masri v Consolidated Contractors International (UK) Ltd & Anor

Under CPR 44.3(8), the relevant “court” is the court division or jurisdiction that made the original costs orders, rather than necessarily the same judge. The power to order further interim payments is discretionary and should generally be exercised only in highly exceptional circumstances. Where liability has become final under the parties’ agreement, the resulting increase in recoverable costs may justify further interim payments. The court may proceed cautiously where the underlying conditional fee agreement or risk assessment is only partly disclosed. It should avoid determining issues requiring detailed costs expertise. A failure to commence detailed assessment within the usual period does not necessarily prevent relief in an exceptional case.

The claimant had succeeded in substantial litigation concerning an oil concession and had obtained judgment exceeding £60 million. Earlier costs orders had provided interim payments calculated before liability was finally determined and while his conditional fee agreement required payment of only part of his solicitors’ standard costs.

After liability had been determined in his favour, the claimant applied under CPR 44.3(8) for further interim payments reflecting the additional costs payable under the agreement, and for summary assessment of outstanding costs. The defendants challenged the court’s jurisdiction, the fairness of proceeding without full disclosure of the risk assessment, the alleged lack of finality caused by further European proceedings, the figures, and the delay in commencing detailed assessment.

1. Jurisdiction. The application succeeded in part. CPR 44.3(8) confers jurisdiction on the court generically understood as the court which made the original costs orders. It does not require the application to be heard by the same judge. Because the relevant orders, apart from the appeal costs, had been made in the Queen’s Bench Division of the High Court, the Commercial Court had jurisdiction to make further orders.
2. Exceptional exercise of discretion. The discretion should be exercised only in highly exceptional circumstances, so that ordinary detailed assessment remains the normal route. The defendants’ persistent attempts to avoid the judgment and costs orders, combined with their pursuit of duplicative litigation, made this an exceptional case.
3. Fairness and disclosure. The court declined to determine whether the contractual uplift was justified by the perceived litigation risks. That issue was suitable for detailed assessment with the assistance of a costs judge. Proceeding without the risk assessment was therefore fair because the court adopted a cautious basis and made no order predicated on the uplift’s full appropriateness.
4. Finality under the agreement. On the proper construction of clauses 5.1 and 5.2 of the conditional fee agreement, liability was finally determined when no further appeal rights remained within the English domestic legal system. Possible European proceedings did not prevent the uplift provisions from being engaged.
5. Quantum and procedure. The claimant’s failure to begin detailed assessment within three months was not a reason to refuse relief in the exceptional circumstances. Further interim payments were ordered at five-sevenths of the additional liability claimed, excluding the appeal costs. The summary assessment application was dealt with by a further interim payment of 60 per cent of the sums claimed.

The judgment records that the underlying claim had been tried before Gloster J, who gave judgment for the claimant exceeding £60 million. The Court of Appeal later struck out the defendants’ appeal because conditions requiring payment of costs awards had not been satisfied. The present judgment concerned a first-instance application for further interim costs payments and summary assessment.