Ali v Bashir & Anor

Under CPR 44.3(8), the court may order payment on account of costs at any stage after making a costs order. The application is distinct from an application for immediate detailed assessment under CPR 47.1. The court must exercise its discretion by considering all relevant circumstances, including possible future set-off, the parties’ means, the public importance of the proceedings and the risk that lack of funds will prevent continuation. The sum ordered should be no more than the amount almost certainly shown to be due on detailed assessment. Only costs clearly attributable to the successful application, and reasonably and proportionately incurred, should be included.

The petitioner challenged the election of the first respondent as a local councillor. The court had previously dismissed the first respondent’s application to strike out the election petition and ordered him to pay the petitioner’s costs, subject to assessment if not agreed. The petitioner then applied under CPR 44.3(8) for £25,000 on account before detailed assessment, explaining that he lacked funds to continue the petition. The first respondent opposed the application, relying on the possibility of a future costs order in his favour and disputing the extent of the costs claimed. The court determined whether payment on account was appropriate and, if so, what sum was almost certainly due.

1. Application granted. The first respondent was ordered to pay £7,589.94 on account of costs and £902.70 for the application, both within 14 days.

2. CPR 44.3(8) permits an order for payment on account wherever a party has been ordered to pay costs. CPR 47.1 concerns the timing of detailed assessment and did not prevent the court from ordering an interim payment. The court therefore had a discretion to order payment on account.

3. In exercising that discretion, the court considered the possibility that the petition might fail and that costs could then be set off under CPR 44.3(9). That was important, but not decisive. The court also considered the parties’ limited financial evidence, the public importance of determining the legality of the election, and the fact that the costs arose from an unsuccessful application initiated by the first respondent.

4. The court applied the approach in Shovelar v Lane [2012] 1 WLR 637 at [58]. The amount ordered had to be no more than would almost certainly be shown to be due on detailed assessment. The court also applied the consideration identified in Blackmore v Cummings [2010] 1 WLR 983, that a successful party should not be kept out of money almost certainly due for longer than necessary.

5. The date on which the strike-out application was issued was treated as a watershed. Work before that date was excluded unless clearly attributable to resisting the application. The court allowed only costs that were unarguably connected with that application and assessed them using reasonableness, proportionality and guideline hourly rates.

The judgment records earlier orders made on 27 July 2012 dismissing the first respondent’s strike-out application and ordering him to pay the petitioner’s costs, subject to assessment. This judgment determined the subsequent application for payment on account.