Santander UK PLC v CCP Graduate School Limited

The court may vary an earlier order under Civil Procedure Rules 1998, rule 3.1(7), where relevant material was overlooked or the facts underlying the order were misstated. The power is exercised sparingly and does not provide a second opportunity to argue an issue already decided.

Where costs are subject to detailed assessment, the court should ordinarily order a reasonable payment on account unless there is good reason not to do so. The amount should be a realistic estimate of likely recovery, allowing an appropriate margin for error and taking account of all relevant circumstances. A stay pending appeal depends on the risk of injustice, including the risk of stifling the appeal and the parties’ ability to recover sums paid.

Santander appealed against Master Brown’s refusal to strike out or summarily determine CCP Graduate School Limited’s claim concerning losses arising from an authorised push payment fraud. Santander’s appeal was allowed on 25 March 2025, and CCP then sought permission to appeal to the Court of Appeal.

CCP applied to vary the consequential order. It argued that it had not had a proper opportunity to address costs, that the interim payment was excessive, and that enforcement should be stayed because it might prejudice or stifle the proposed appeal. The central issues were whether the order could be revisited, whether a stay should be granted, and what constituted a reasonable payment on account of costs.

1. Power to vary. The order of 25 March 2025 had not been made without giving CCP an opportunity to make representations under CPR 3.3(4). The parties had been directed to address the terms of the order and any consequential applications before hand-down. CPR 3.1(7) therefore applied only on the usual restrictive basis. However, the court accepted that it had proceeded on a mistaken understanding that CCP was not challenging Santander’s costs. In the interests of justice, it could revisit the amount of the interim award.
2. Stay. The court applied the guidance in Hammond Suddards Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065. CCP had produced no evidence that enforcement of the interim award would stifle or materially prejudice its appeal. Santander’s resources also meant that CCP would be able to recover any overpayment if successful. A stay was therefore refused.
3. Interim costs. Under CPR 44.2(8), a reasonable sum should ordinarily be paid on account where costs are subject to detailed assessment. Applying Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm), the court considered the likely level of recovery, the complexity and wider significance of the claim, CCP’s conduct, the parties’ means, the prospect of appeal and the risk of overpayment. The costs were not, in general terms, clearly disproportionate, but CCP had identified some potentially relevant matters for detailed assessment.
4. The interim payment was accordingly reduced from 75 per cent to 60 per cent of Santander’s claimed costs. The order was also varied to remove the decision on permission to appeal, which was a matter for the Court of Appeal under CPR 52.7(1).

• High Court (King’s Bench Division): On 25 March 2025, Mrs Justice Eady allowed Santander’s appeal against Master Brown’s decision refusing strike out or summary judgment in relation to the duty of retrieval claim.
• High Court (King’s Bench Division): In the present consequential application, the court varied the earlier order by removing the decision on permission to appeal and reducing the interim costs payment to 60 per cent. The application for a stay was refused.
• Court of Appeal: CCP’s application for permission to appeal was to be determined by the Court of Appeal.