The High Court refused C.E.D. Construction Limited’s application for a payment on account of legal costs, finding that the company was responsible for the delay before it issued a summons to tax those costs.
The dispute with First Ireland Risk Management Limited had been settled on 4 February 2016. Under the settlement and a perfected court order made that day, First Ireland was to pay CED’s costs on the basis of a one-day hearing. The parties did not agree the amount payable.
CED applied by notice of motion dated 3 July 2017 for an interim payment under Practice Direction HC71, pending taxation of the costs. The direction refers to Order 99, rule 1B(5). Mr Justice Max Barrett said the reference appeared to be to Order 99, rule 5, which allows costs to be dealt with at any stage, including after proceedings have concluded.
The judge held that the court had jurisdiction to make the requested order. He said the rule did not require a party to have reserved liberty to apply before final orders were made. He also noted that the rule’s potential to support an interim costs payment remained even if the delays in taxation mentioned in the practice direction no longer existed.
But the court declined to exercise that power in this case. In an affidavit, First Ireland’s solicitor recounted that CED’s side had said on 2 March 2017 it would issue a summons to tax, but did not issue it until 5 May. The affidavit also described earlier exchanges about the bill of costs, file inspection and disputed items. Those details were evidence placed before the court, rather than separate findings on each exchange.
The summons was returnable on 21 June 2017, six days after CED’s proposed application. Justice Barrett said a return date within six weeks of issue did not show any particular delay in the taxation process. He found that responsibility for the preceding delay rested with CED and refused the order sought. The judgment did not determine the final amount of costs payable.