Ideal Shopping Direct Ltd & Ors v Visa Europe Ltd & Ors

Where proceedings have ended, the court may order the claimant to pay the defendants’ reasonable costs, even if related proceedings are intended or have been issued. An analogy with discontinuance does not remove the ordinary costs liability; CPR rule 38.6(2)(b) concerns the timing of detailed assessment. A proposed appeal is not, by itself, a good reason to withhold an interim payment on account under CPR rule 44.2(8). Permission to appeal may be granted on a point of general importance or where appellate clarification would be desirable, even though the first-instance judge does not consider that point to have a real prospect of success.

Following an earlier judgment in the same proceedings, the court determined consequential issues concerning costs, payments on account and permission to appeal. The underlying proceedings had come to an end, while the claimants intended to issue or had issued further proceedings against the defendants.

The issues were whether the claimants should pay the defendants’ costs of the concluded proceedings, whether interim payments should be made pending detailed assessment, and whether permission to appeal should be granted on the interpretation and application of several provisions of the Civil Procedure Rules 1998.

1. Costs of the concluded proceedings. The claimants were ordered to pay Visa’s and Mastercard’s costs. The fact that further proceedings might be brought did not justify making no order as to costs. The alleged analogy with discontinuance did not assist: CPR rule 38.6(2)(b) addressed the time for detailed assessment of costs relating to a discontinued part of a claim, not whether those costs were payable.
2. Payments on account. Under CPR rule 44.2(8), a party ordered to pay costs subject to detailed assessment should ordinarily pay a reasonable sum on account unless there was good reason otherwise. The proposed appeal did not constitute such a reason because no risk of non-repayment by the respondents was shown. Mastercard was awarded £80,000 and Visa £110,000, taking account of the judge’s provisional view that the costs claimed were substantially excessive and that Visa’s proposed deduction did not adequately reflect its costs relating to the undertakings application.
3. Permission to appeal. Permission was granted on the issue concerning reliance on CPR rule 3.10, not because the judge considered that the point had a real prospect of success, but because the first-instance authorities were in an unsatisfactory state and Court of Appeal guidance would be desirable. Permission was also granted on the issue concerning whether unsealed amended claim forms constituted claim forms for CPR rule 7.5, so that the Court of Appeal could consider the interaction with electronic working. Permission was refused in relation to CPR rules 6.15 and 6.16.

The judgment followed an earlier judgment in the same proceedings, [2020] EWHC 3399 (Ch), after which the court dealt with consequential costs and permission-to-appeal matters. Permission to appeal was granted on the CPR rules 3.10 and 7.5 issues and refused on the CPR rules 6.15 and 6.16 issues.