H, R (On the Application Of) v Secretary of State for the Home Department

An indemnity costs order requires conduct sufficiently outside the norm to justify departing from the ordinary basis. Criticism of the conduct of a defence is insufficient unless it takes the case materially beyond ordinary litigation conduct. Where the applicable procedural rules justify an interim payment on account of costs, the court may determine a reasonable figure without calculating a percentage of an unseen bill.

Following an earlier order, the claimant sought indemnity costs and an interim payment on account of costs under CPR 44.2(8). The defendant opposed both applications. The court determined whether the conduct of the defence justified indemnity costs and, if an interim payment was appropriate, how that payment should be assessed.

1. The application for indemnity costs was refused. Although aspects of the defence could have been conducted better, the conduct was not sufficiently far from the norm to justify an indemnity basis.
2. An interim payment on account of costs was appropriate under CPR 44.2(8).
3. The court was unwilling to award an interim payment calculated as a percentage of a bill of costs which neither the court nor the defendant had seen. It instead used its judgment to select a figure which could reasonably be expected to be exceeded by the eventual costs award.