RXK v Hampshire Hospitals NHS Foundation Trust

An interim payment on account of costs requires an existing costs order capable of detailed assessment. Where that order has not yet been made, the proper application is for costs to be ordered up to a specified date, together with an interim payment on account of those costs. The jurisdiction under Senior Courts Act 1981, section 51 and Civil Procedure Rules 1998, rule 44.2 is wide. No exceptionality test applies. The court must consider all relevant circumstances, including funding, offers, payments, likely damages, costs incurred, possible costs complications and the likely trial date. The applicant must provide sufficient evidence to permit that assessment.

The claimant, a child who had obtained judgment for damages to be assessed in a clinical negligence claim, had previously received interim payments on account of liability costs. She later sought a further payment on account of costs, relying on anticipated delay before quantum could be determined.

The costs schedule did not distinguish liability from quantum costs, and the evidence did not address funding, payments, offers, likely damages, costs incurred or other matters relevant to the ultimate incidence of costs. The central issue was whether the court had jurisdiction to make the proposed payment and, if so, what application and evidence were required.

1. Application adjourned. The application was not suitable for determination because essential evidence was missing. The claimant was permitted to serve further evidence and apply to re-list it.
2. Under Civil Procedure Rules 1998, rule 44.2, read with section 51 of the Senior Courts Act 1981, the court has a wide discretion as to whether costs are payable, their amount and when they are to be paid. There is no requirement to establish exceptional circumstances.
3. The court agreed with the reasoning in X v Hull & East Yorkshire Hospitals NHS Trust that rules 44.2(1) and (2) were wide enough to support an order of this kind. However, the relevant order must be identified accurately. Rule 44.2(8) permits an interim payment on account only after a costs order has been made which is subject to detailed assessment.
4. The proper application is therefore for a costs order up to a specified date, together with an interim payment on account of those costs. The order may be prospective or anticipatory because it can be made before the proceedings have concluded.
5. The court should consider the circumstances listed in rule 44.2(4) and (5), together with matters relevant to security and repayment. Relevant information may include the funding agreement and payments, any Part 36 or other admissible offer, interim damages payments, a realistic valuation of damages, quantum costs incurred, possible issue-based costs orders or disputes over rates and conduct, and the likely trial date.
6. The claimant’s evidence did not address those matters and was insufficient to justify the requested payment.