Chedington Events Limited v Nihal Mohammed Kamal Brake & Anor (Quantum trial consequential orders)

An unpaid interim payment order may be discharged and replaced by a single final payment obligation under CPR rule 25.8. An intended appeal does not justify a stay of execution without evidence of a real risk of injustice, particularly irremediable harm or the appeal being stifled.

The successful party for costs purposes is ordinarily the party which succeeds in the litigation, not necessarily the party recovering the amount sought. The general costs rule may be displaced by conduct and settlement offers. Indemnity costs require circumstances taking the case outside the norm, including serious litigation misconduct. A payment on account should be a reasonable estimate of likely recovery after allowing for uncertainty.

The claimant succeeded in a trespass claim concerning West Axnoller Farm. Liability had been determined in [2022] EWHC 365 (Ch), and damages were assessed at £236,818.27 in [2023] EWHC 2804 (Ch). The defendants had not paid a previous interim payment of £225,000 and intended to seek permission to appeal the quantum judgment.

The claimant sought discharge of the interim payment order, judgment for the damages and interest, indemnity costs, and a payment on account. The defendants opposed those orders, sought a stay, and claimed that they were the successful parties for costs purposes.

1. Payment obligation. CPR rule 25.8(2)(b) empowered the court to discharge the unpaid interim payment order. The provisions of Practice Direction 25B paragraph 5 concerned adjustment by reference to interim payments actually made and therefore did not apply. It was appropriate and efficient to replace the order with judgment for £236,818.27 and one interest calculation.
2. Stay. Applying Hammond Suddards v Agrichem International Holdings Ltd and Department for the Environment, Food and Rural Affairs v Downs, a stay is exceptional and requires evidence supporting a real risk of injustice. The defendants produced no evidence of irremediable harm or inability to recover money after a successful appeal. Possible awards in separate proceedings against a different company did not justify a stay. The application was refused.
3. Costs. The claimant was the successful party because it established liability for substantial damages against the defendants’ case that the trespass caused no loss. The reduction from the sum claimed did not displace the general rule. The defendants’ repeated procedural defaults, defective evidence, improper interference with expert evidence, failure to admit basic facts, and reliance on tactical settlement offers took the case outside the norm and justified indemnity costs.
4. Assessment and payment on account. Costs were directed to detailed assessment. Applying the requirement for a reasonable sum on account, £140,000 was ordered, notwithstanding the defendants’ alleged impecuniosity.

Orders were made for damages of £236,818.27, interest of £61,804.22 to 10 November 2023 and continuing at judgment rate, indemnity costs subject to detailed assessment, and £140,000 on account of costs.

The judgment records earlier proceedings in the same litigation, including the liability judgment at [2022] EWHC 365 (Ch), refusal of permission to appeal, and the quantum judgment at [2023] EWHC 2804 (Ch) . Those decisions are part of the same litigation and are not separately treated as cited authorities.