Orexim Trading Ltd v Mahavir Port And Terminal Private Ltd
At MRN we are forever conscious of our clients’ requirements for regular payments on account owing to internal targets and in general pursuance of harmonious cash flow. The recent welcome but novel decision in the case of Orexim Trading Ltd v Mahavir Port And Terminal Private Ltd (Costs)  EWHC 2338 (Comm) is summarised here.
In this case HHJ Hancock QC considered the Claimant’s application for an interim payment in a case where an unless order had been made. The order for an interim payment was to take effect if the defendant failed to comply with the order.
HHJ Hancock QC followed the approach of Mr Justice Coulson in McInnes v Gross  EWHC 127 (QB), in which he deemed a starting point in calculating an appropriate interim payment to be the approved costs budget.
HHJ Coulson J then went on to reduce the figure by 10%, “which I regard as the maximum deduction that is appropriate in a case where there is an approved costs budget”. HHJ Hancock followed the same formulaic approach:-
“In view of the fact that I have not ordered indemnity costs, I have concluded that a slightly lower figure should be adopted, and I order that, if the unless order is not complied with, an interim payment on account of costs in the amount of £350,000 should be paid within 28 days of judgment being entered and served on the defendant.”
The decision is no doubt a valued one for Claimant firms, in providing an innovative potential sweetener for circumstances in which ones opponent routinely fails to comply with orders of the Court.
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