The High Court recently handed down judgment in Aliston Albert Ashman v Clyde Caulson Thomas  EWHC 1810 (Ch). The case provides useful clarification on the time for seeking an interim payment on account of costs awarded.
Best practice dictates that a request should be made at the end of a hearing for either a summarily assessed figure for costs, or an interim payment on account of costs to be the subject of detailed assessment.
However, what is the position if this is either not practical (e.g. due to time constraints), or the opportunity is missed? This is what has been clarified by the High Court.
In this case a costs order was made by Master Matthews at the hearing of a preliminary issue. It provided for the costs of determining those issues to be paid by the claimant on the standard basis if not agreed.
No request was made at the hearing for the claimant to make an interim payment on account of costs to be determined by later detailed assessment proceedings (in the absence of an agreement being reached between the parties).
Despite this, when it came to drawing up the order counsel for the defendant sought to include provision for a payment to be made by the claimant on account of costs. This was not agreed by counsel for the claimant who argued that to get such an order a request needed to be made before the conclusion of the hearing at which the cost order was obtained.
In the circumstances, counsel for the defendant made written submissions to the court requesting the inclusion of a payment on account of costs in the order. In determining the dispute, the High Court had reference to CPR 44.2(8) which states:
Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.
Applying this Rule Master Matthews clarified that:
- whilst the general rule is that an order is effective from the moment it is made, the court has the ability to alter the judgment or order at any time until it is perfected by court seal (see Re Barrell Enterprises  1 WLR 19, CA); and
- given the use of the words “unless there is good reason not to…” in Rule CPR 44.2(8) there was even more reason to consider the written request for a payment on account of costs made after the hearing to which it related so long as it was made before the order had been sealed.
An order was duly made for a payment to be made on account of costs within 14 days.
This case provides useful and practical guidance for practitioners who fail to request a payment on account at the hearing. It gives them a second bite at the cherry. Interestingly, this was held to be the case even in the absence of a costs schedule being served 24 hours before the hearing, in breach of CPR 44PD para 9.5(4)(b). Master Matthews commented that this was a case for detailed assessment and the whole of para 9.5 of PD44 is concerned with summary and not detailed assessment of costs.
However, where possible a request should be made at the hearing itself to avoid the additional cost and delay that could otherwise arise in drafting the order. Also, in many cases the order will be sealed by the court without any further negotiation as to wording between the parties and the additional window of opportunity to request a payment on account missed.
It should be a matter of course for practitioners to seek payment on account at the hearing. If they fail to do so and there is no opportunity to make a written request before the order is sealed the receiving party will have to wait until a request for a detailed assessment hearing has been filed and an application made for an interim costs certificate pursuant to CPR 47.16.