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Interim Cost Orders Notes
Summary of the principles, including tables and flowcharts
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Interim Cost OrdersWhen are costs orders made?
à At the end of almost every hearing; not limited to trial, and includes:
• Interim applications
• Order on the court’s own initiative (r.3.3),
o Judgment creditor (JC) seeking to enforce its judgment
o A party appealing there are costs incurred when a JC seeks to enforce its judgment, or even when
a party appeals. (doesn’t matter whether or not the order is made on papers)
• In an assessment of costs, the court may make an order for costs
NB: Costs are always discretionary, but usually follow the event. (s.51(1) Senior Courts Act 1981)
Starting point: Winning party recover their costs of the interim application from the loser, with costs to be paid on
standard basis (r.44.3)
Exception: The court may make a different order (r.44.3(2)(b))
• What must the court take into account when deciding what order to make?
o The conduct of all parties;
o Whether a party has partially/fully succeeded in his case; and
o Any admissible offer to settle made by a party which isn’t an offer to which costs consequences under
Pt 36 apply.
What does the ‘conduct of all parties’ include? (r.44.3(5))
1. Conduct before & during the proceedings, especially the extent the parties followed the PD Pre-Action
Conduct or PAP
2. Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
3. the manner in which a party has pursued or defended its case or a particular allegation or issue; and
4. whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
PD 44 para 4.2 Typical Costs Orders
X = party in whose favour the court makes an order
Term Effect
Costs/costs in any X is entitled to the costs in respect of the part of the proceedings to which the order relates
event whatever other costs orders are made in the proceedings.
Costs in the The party which gets the costs at the end of the proceedings is entitled to his costs in the
case/costs in the interim application
application V common!
Costs reserved The decision about costs is deferred to a later occasion, but if no later order is made the
costs will be costs in the case.
May be appropriate for interim applications without notice, and after a split trial on liability
(where the judge has a wide discretion on whether to reserve costs to the remedies
hearing)
Claimant’s/defendant’s If X gets the interim costs order in their favour and is also awarded costs at the end of the
costs in proceedings, X can claim the interim costs. But if Y is awarded costs at the end of the
case/application proceedings, Y doesn’t need to pay the costs in X’s interim costs order.
Costs thrown away Where a judgment/order is set aside (or wasted in a sense) X is entitled to the costs in the
interim application
This includes the costs of—
(a) preparing for & attending any hearing at which the judgment or order which has
been set aside was made;
, (b) preparing for and attending any hearing to set aside the judgment or order in
question;
(c) preparing for and attending any hearing at which the court orders the proceedings
or the part in question to be adjourned; and
(d) any steps taken to enforce a judgment or order which has subsequently been set
aside.
Costs of and caused Where the court makes this order on an application to amend a statement of case, X is
by entitled to the costs of preparing for and attending the application and the costs of any
consequential amendment to his own statement of case.
Costs here and below X is entitled not only to his costs of the proceedings in which the court makes the order
but also his costs of the proceedings in any lower court.
In the case of an appeal from a Divisional Court, X is not entitled to any costs incurred in
any court below the Divisional Court.
No order as to Each party bears his own costs of the application
costs/each party to
pay his own costs
Interim Costs Orders
à For all interim applications, after the court makes the order on the application, it will consider who should pay the
costs of the application.
• Main principles apply (costs are discretionary & costs follow the event principle)
• Court may make variations
Exam tip: You need to:
• be able to define what all the entries in the table mean
• be able to select the most suitable cost formulation to meet the situation in any civil case that might arise
Costs
General rule: Costs orders are discretionary (Look at Session 13)
• Loser pays winner (costs follow the event)
A costs order should: Costs orders are made:
• state which party has to pay costs to the other • at the end of interim hearings
• state what percentage of costs are to be • at the end of trials
o paid (if applicable) • at the end of appeal hearings
o deal with how much is payable • as an adjunct to enforcement
• include sufficient reasons so the paying party can understand • at the end of hearings to assess
why they are being required to pay the costs. costs.
Knowledge Check:
‘Costs in the case’ means that the costs of the interim hearing will be a part of the general costs of the proceedings
and so whoever is awarded costs at the end of the trial will get the costs of the interim hearing.
• This order is usually used after the interim hearings dealing w the CM decisions if there is no obvious
winner/loser.
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