Agents' Mutual Ltd v Gascoigne Halman Ltd (t/a Gascoigne Halman)

The court has jurisdiction to order a further interim payment on account of costs, but the power is discretionary. A further payment should not be ordered merely because the successful party remains out of pocket pending detailed assessment. The court must identify a safe minimum which will not exceed the final costs liability. A previous interim costs order should be revisited only where there has been a material change of circumstances justifying that course.

Following the Court of Appeal’s decision in [2019] EWCA Civ 24, the court considered applications at a case management conference. The claimant had previously obtained an order for its costs of the competition issues and an interim payment of £1.243 million. Detailed assessment was about to begin. The claimant sought a further interim payment, relying principally on the passage of time and the defendant’s non-payment of costs beyond the sum already ordered. The central issue was whether the court should revisit its earlier costs decision.

1. Application refused. The court accepted that it had jurisdiction to order a further interim payment on account of costs, but declined to exercise its discretion.
2. An interim payment must represent a safe minimum. The amount ordered should not exceed the final amount of costs ultimately found to be payable.
3. The court had already considered the appropriate safe minimum when making the order of 12 July 2017. That was a reasoned decision, and there had been no material change of circumstances justifying its reconsideration.
4. The claimant’s continued non-payment of costs did not alter the conclusion. The defendant had made the interim payment ordered and was entitled to await the outcome of detailed assessment. Although the purpose of an interim costs order is to minimise the period for which the successful party is kept out of its money, that purpose did not justify increasing the payment in the circumstances.

The application for a second interim payment on account of costs was therefore refused.

• Court of Appeal: The judgment refers to the Court of Appeal’s decision in [2019] EWCA Civ 24.
• High Court (Chancery Division): At a subsequent case management conference, the court refused the claimant’s application for a further interim payment on account of costs.