England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
(His Honour Judge Mackay)

		Royal Courts of Justice Strand London WC2 Tuesday, 13th November 2001

1. LORD JUSTICE CLARKE: There are before the court two applications. The first is an application by the appellants for a stay of the part of the order made by the judge, in which he ordered the claimants to pay the defendants' costs, those costs to be the subject of a detailed assessment. The application is that that order be stayed so that the assessment does not take place pending the decision of this court on the appeal. As to that, it appears to me that in principle a stay should be granted. While I entirely accept Mr. McDonald's submission that it is not at present known what order the Court of Appeal will make after hearing the appeal, one possibility at least is that the appeal will succeed; a retrial will be ordered and the order for costs will be set aside. If that should happen, both the time involved and the costs involved in a detailed assessment would be wasted if a detailed assessment occurred before the hearing of the appeal.
2. It appears to me to be in nobody's interests to require the parties to have such a detailed assessment, which would undoubtedly be expensive in itself, given the amount of the costs claimed which are in the order of £250,000. For those reasons I accede to the application for a stay.
3. On the other hand, Mr McDonald submits that the right order would be to order an interim payment, a payment on account of all the costs. In any event, he points to an order which the judge made dated 22nd September 2000, in which the judge ordered the claimants to pay the defendants' costs of and occasioned by a substantial amendment, including costs thrown away, on an indemnity basis in any event. Mr McDonald submits, with great force, that those costs will be payable whatever happens. He therefore submits that on any view the appellants should be ordered to make an interim payment on account of them.
4. Mr. Casement submits that the applications should be adjourned because they were served only on Friday, which did not give the appellant the three days to which it was entitled under the CPR. He draws attention to the fact that the appellant is in New Zealand and therefore is more difficult to communicate with than an appellant nearer at hand. I see the force of that submission, and it appears to me that in those circumstances I should not make an order for an interim payment in relation to the costs generally at present. However, my provisional view is that it would be appropriate to make an order for an interim payment. I note in passing that the respondents asked the appellants' solicitors to make a payment on account some months ago and the appellants' solicitors did not respond to that request. My provisional view is that it would be appropriate to make such an order, and I propose to give directions in a moment as to how that matter may be dealt with.
5. As to the claim for an interim payment of the costs ordered in the order of 22nd September 2000, I have reached the conclusion that it would be appropriate to make an order for an interim payment. As to quantum, the difficulty is the same as that indicated earlier, namely that the application was only made on Friday. In those circumstances, it appears to me that it would not be appropriate to choose a figure today. The order of the court will be (1) that a detailed assessment of the defendants' costs be stayed until after the hearing of the claimants' appeal; (2) that the application for an interim payment on account of costs generally be adjourned; and (3) that the appellants do make an interim payment on account of the costs ordered to be paid on 22nd September 2000 but the quantum of that order also be adjourned.
Order: Orders as per judgment; appellants' case on quantum to be stated within 14 days; figure to be arrived at in relation to security for costs within 14 days; witness statement to be served within 21 days setting out (1) the amount of costs which the claimant is willing to pay in relation to the order of 22nd September 2000; (2) the precise nature of the claimants' case in relation to the defendants' application for an interim order for costs generally, (a) as to principle and (b) as to quantum; respondent to reply within seven days; respondent to then have liberty to apply; costs reserved. (Order not part of the judgment of the court)