Making an Application for an Interim Payment? Is your checklist handy?
Our Jenny Cawthorne, FCILEx, reports on the recent decision in RXK (A child proceeding by her mother and litigation friend GXK) v Hampshire Hospitals NHS Foundation Trust.
The Claimant filed an application for further payments on account of damages and costs, which was listed before Master Cook. By the time of the hearing, the only live issue was the application for a further interim payment on account of costs.
By way of background, the case arose as a result of a negligent delay in the Claimant’s delivery at the time of her birth in 2016. Judgment was entered for damages to be assessed in 2017, and she was awarded her liability costs subject to detailed assessment. This order also provided for interim payments on account of damages in the sum of £100,000 and costs in the sum of £50,000.
Master Cook stated that the application had not been presented in a particularly helpful way and much of the material required to determine the application was missing. It also became apparent that the Claimant was seeking an interim payment on account of quantum costs in circumstances where the only previous order for costs was in relation to liability costs.
The Claimant’s witness statement failure to adequately address any of the necessary issues and “amounted to no more than a cri de couer for more money”. The schedule of costs which had been included in the witness statement was a short summary of all profit costs incurred but no attempt had been made to apportion the figure between liability and quantum costs.
It also became apparent that the Claimant had the benefit of a public funding certificate and that some payments had been made on account by the Legal Services Commission.
Master Cook accepted the need for solicitors engaged in heavy and protracted litigation to expect adequate cash flow during the course of the claim but he outlined a checklist for solicitors applying for similar costs awards.
He said that applicants should consider including:
- The type of funding agreement and details of any payments made under that agreement.
- Whether any Part 36 or other admissible offer has been made and, if so, full details of the offer.
- Details of any payments on account of damages made to date.
- A realistic valuation of the likely damages to be awarded at trial.
- A realistic estimate of the quantum costs incurred to the date of the application.
- Any other factor relevant to the final incidence of costs, such as the possibility of an issue-based costs order, arguments over rates or relevant conduct.
- The likely date of trial or trial window.
Master Cook allowed the parties to serve one further witness statement each and apply to re-list the application for hearing.
Master Cook’s checklist provides handy guidance for parties who may wish to make applications for interim payments on account of costs in the future.
If you have any queries regarding interim payment applications, please do feel free to get in touch with us.
5th December 2019