Ashman v Thomas

Where costs are ordered subject to detailed assessment, the court should ordinarily order a reasonable payment on account unless there is good reason not to do so. The request may be considered after the hearing, provided the order has not been entered and perfected by sealing. The court may alter its judgment or order during that period. The payment is provisional and should allow a margin for possible overclaim. In fixing the amount, the court must consider reasonableness and proportionality, including excessive hourly rates, excessive hours and inadequate delegation.

The court had previously determined preliminary issues and awarded their costs to the defendant, subject to detailed assessment. Before the costs order was sealed, the defendant sought an order for £20,000 on account from a costs schedule totalling £48,647.70. The claimant objected that the request was late, should not be dealt with by written submissions, and was unsupported by a timely costs schedule. He also challenged the allocation, signature, rates and staffing of the claimed costs.

The central issue was whether a payment on account could be sought and ordered after the hearing but before the order was sealed, and, if so, what sum was reasonable.

1. Power to consider the request. The general rule is that an order takes effect when made, rather than when entered and sealed, under CPR 40.7. However, the court retains power to alter its judgment or order until it has been entered and perfected by sealing. That power is not confined to exceptional circumstances: Holtby v Hodgson (1890) 24 QBD 103; Re Barrell Enterprises [1973] 1 WLR 19; Re L (Children) [2013] 1 WLR 634, Sup Ct.
2. Timing and procedure. Nothing in the rules or authorities prevented consideration of a payment-on-account request made after the hearing but before sealing. The request could appropriately be dealt with by written submissions. Failure to serve a costs schedule 24 hours before the hearing was not fatal because PD44 para 9.5 concerns summary, rather than detailed, assessment.
3. Amount. CPR 44.2(8) required a reasonable sum on account unless there was good reason not to order one. The provisional nature of the payment justified leaving a margin for possible overclaim. The schedule was accepted as relating only to the preliminary issues, and the lack of a personal signature was not material for this purpose.
4. The claimed rates, hours and absence of delegation made £20,000 unsafe. The paying party should not be required to pay more than was reasonable and proportionate. The court therefore ordered payment of £17,500 on account of costs within 14 days.

not stated in the judgment.