Blackmore v Cummings 10 June 2009 Here, a receiving party who had already received a payment on account, were not entitled to a further payment on account.
Blackmore v Cummings 10 June 2009
Here, a receiving party who had already received a payment on account, were not entitled to a further payment on account.
B had successfully applied for relief against C and at the conclusion of those proceedings, B was awarded his costs and an interim payment on account pursuant to the CPR r.44.3. Twenty-nine months later, he submitted a bill of costs in excess of the estimate that had been put before the trial judge. Points of dispute were served. Thereafter B petitioned the court for a further payment on account. This was refused by a costs judge on the basis that (i) C would be able to meet the eventual costs order; (ii) B was not in any financial difficulty; (iii) there had been a significant delay before he commenced the costs proceedings; (iv) the trial judge had already awarded him a payment on account.
That decision was reversed on appeal by a district judge on the basis that B was entitled to the benefit of the costs order in his favour.
C appealed, contending that a judge would not always be in the position of being able to make such an assessment or follow such a presumption, often not having the benefit of all the material in the case and having made only a rough and ready assessment of the costs involved. B argued that a payment on account of costs should be made by a judge where the judge was reasonably certain that the applicant would be awarded more money than he was asking for.
The Appeal was allowed. A party's entitlement to the benefit of such an order was simply another factor to be considered in the exercise of a judge's wide discretion under CPR r.44.3 and CPR r.47.15 . The district judge had erred by seemingly starting from the position that there was a presumption that B was entitled to an interim payment on account by virtue of having had a costs order in his favour. However it was merely one factor to be taken into consideration. There was no dispute that once the costs were assessed C would be able to meet any liability and that B had delayed commencing the costs proceedings by some 29 months. Having regard to those factors and the other factors considered by the costs judge, it was inappropriate for another payment on account to be made.
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